Constrain Uses of Hate Speech
2.10 TIME, PLACE, AND MANNER RESTRICTIONS
The tenth cluster is instantiated by a particular subset of laws/regulations/
codes that impose time, place, and manner restrictions on speech. This cluster is qualitatively different from the others in the sense that normally such laws/regulations/codes are not intended to constrain speech or oth-erwise expressive conduct that is enacted through the use of hate speech.
So this cluster is not hate speech law in the narrow sense. Nevertheless, I have included this cluster because in some circumstances authorities have attempted to utilize time, place, and manner restrictions in order to constrain the practices of hate speakers, including their uses of hate speech. Authori-ties have sought to constrain uses of hate speech, in other words, when they involve means or circumstances of communication that fall foul of relevant time, place, or manner restrictions. It might be true that even in these excep-tional circumstances laws/regulations/codes only indirectly constrain uses of hate speech, but the fact that they do so is far from coincidental.
The US is a notable absentee from most of the previously discussed clus-ters, but arguably one example of a time, place, and manner restriction that had been used to constrain uses of hate speech was the Fairness Doctrine introduced in 1949 by the United States Federal Communications Commis-sion (FCC). It made it mandatory for holders of TV and radio broadcast licenses to not merely broadcast controversial issues of public concern but also to do so in a manner that was honest, equitable, and balanced as deter-mined by the FCC. In the late 1960s the US Supreme Court did not regard the Fairness Doctrine as a violation of the First Amendment, at least with respect to public service broadcasters. 208 More importantly, prior to the FCC’s decision to repeal the Fairness Doctrine in 1987, associations repre-senting groups or classes of persons had used the FCC complaints procedure to lodge complaints against broadcasters for violating the Doctrine through their use of hate speech, albeit with limited success. 209
More recently, US courts have given a degree of leeway to authorities in tackling a new mode of hate speech via time, place, and manner restric-tions. This form of hate speech is encapsulated in a practice adopted by Fred Phelps and other members of the Westboro Baptist Church of picketing the funerals of deceased US military personnel, the funerals of ordinary citizens
who have died of AIDS, and the funerals of ordinary citizens killed in high-profile mass shootings, as a way of publicly conveying the Church’s religious message that homosexuality is an abomination in the eyes of God. The prac-tice has prompted lawmakers in various US states to enact time, place, and manner regulations concerning protests at funerals and burials, specifically, creating buffer zones or minimum distances for protests, written in such a way as not to run afoul of the First Amendment requirement of content and viewpoint neutrality (e.g., Arizona, 210 Kansas, 211 , Missouri, 212 Ohio 213 ). In several cases the Courts have looked upon these sorts of regulations not unfavorably from the perspective of free speech. In Phelps-Roper v. Strick-land (2008) 214 and Phelps-Roper v. City of Manchester (2012), 215 for exam-ple, two US Courts of Appeal held that the laws or regulations adopted by the State of Ohio and the City of Manchester, Missouri, respectively to regulate protests and picketing at funerals and burials were legitimate time, place, and manner regulations consistent with the First Amendment.
Of course, because time, place, and manner restrictions are broad in scope, they also constrain the activities of groups or classes of persons that have been the victims of hate speech and who are seeking to engage in direct forms of counterspeech. Thus, laws or regulations that create buffer zones around funerals apply equally to people who wish to mount counterprotests against picketers from the Westboro Baptist Church.
Because time, place, and manner restrictions do not pick out any par-ticular content or viewpoint, there is a sense in which they pose less of a threat to free speech values than other clusters discussed previously. How-ever, this does not mean to say that they are not subject to objections. There are civil libertarians who argue that sometimes these laws are exploited for purposes that do violate free speech values, and that the aim of confronting hate speakers would be better pursued by allowing counterspeech to find its own path, without legalistic constraints. I shall discuss at length the coun-terspeech argument against hate speech law in Ch. 9 [9.3].
* * *
I wish to draw this chapter to a close by making some general observa-tions about these ten clusters. My first observation is that together they span three jurisdictional levels: laws/regulations/codes at the level of a sovereign state, including laws issued by national, state, county, city, and even village governmental authorities (e.g., constitutional law, criminal law, civil law, administrative law, immigration law, public gatherings law, law on contempt of court, various kinds of local or municipal laws, codes, regulations, or ordinances); laws/regulations/codes at the international level (e.g., conventions, declarations, protocols, the jurisprudence of supranational human rights courts); laws/regulations/codes at the level of subnational institutions, organizations, and commercial companies (e.g., speech codes enforced by employers, schools, universities; rules on per-missible content imposed by independent media and internet regulators;
standards or codes on acceptable content adopted and enforced by newspa-pers, TV and radio broadcasters, internet service providers, social network-ing websites, internet messagnetwork-ing services). So in that sense one can plausibly say that as a corpus of law hate speech law is not merely variegated in form but also broad in scope.
My second observation is that many of these clusters are recognized, implicitly or explicitly, by courts themselves. At times courts have taken a dim view of attempts to transplant arguments appropriate to some clusters of law into the pastures of other clusters. So, for example, in R. v. Bird-wood , the Court of Appeal of England and Wales rejected a truth defense relating to the offense of incitement to racial hatred partly on the grounds that the point and purpose of such law differs from that of group defama-tion law ( sensu stricto ). More generally, courts of review have often been asked to consider whether or not lower courts have paid due attention to relevant distinctions between clusters of laws, including relevant differences between the types of conduct proscribed by those laws. Thus, in Nahimana, Barayagwiza, Ngeze v. The Prosecutor (2007) 216 the Appeal Chamber of the International Criminal Tribunal for Rwanda judged that the Trial Cham-ber had not blurred the distinction between statutes banning incitement to hatred, statues interdicting incitement to discrimination and violence, and statutes prohibiting direct incitement to commit genocide. 217
My third observation acts as a counterweight to the second. It is that, like all ideal types, the precision these clusters promise is not always matched by actual law. For one thing, it is evident that some laws/regulations/codes are articulated in such a way as to render punishable a disjunctive form of conduct (conduct that is comprised of either conduct A or conduct B) and others a conjunctive form of conduct (conduct that is comprised of conduct A and conduct B), and as a result these laws/regulations/codes can be fit-ted into more than one of the ten clusters outlined in this chapter. Consider Ch. 11, s. 8 of the Finnish Penal Code, which prohibits ‘ethnic agitation.’
‘A person who spreads statements or other information among the public where a certain race, a national, ethnic or religious group or a comparable group is threatened, defamed or insulted shall be sentenced for ethnic agita-tion to a fine or to imprisonment for at most two years [trans.].’ The refer-ence to threat, defamation, and insult could conceivably mean that the law could be placed in the cluster of laws banning hate speech when it amounts to discriminatory intimidation, laws prohibiting group libel ( sensu stricto ), and laws restricting the expression of hatred. Furthermore, there are many occasions when cases have been pursued by appealing to one cluster of law when arguably the facts of the case might have best suited a different cluster that was also available to public prosecutors in the relevant jurisdiction.
Holocaust denial literature has often been tackled using laws other than dedicated Holocaust denial laws. 218
Finally, it is one thing to say that particular laws are open to interpreta-tion and can be fitted into different clusters; it is quite another to say that
when it comes to legal interpretation, there are no holds barred. Sometimes key elements of laws/regulations/codes delimit which clusters they can be reasonably interpreted as belonging to, and so it would be naive to think that any particular law/regulation/code that constrains uses of hate speech can be identified with any one of the aforementioned clusters. Laws banning incitement to hatred have often been subject to gross misinterpretations, for example. A Newsweek article from 1988, which is cited by the Oxford Eng-lish Dictionary as containing the earliest pubEng-lished use of the term ‘hate speech’, repeatedly conflates laws banning incitement to hatred with laws proscribing incitement to violence (Jacoby 1988: 48). The author of a best-selling undergraduate textbook on political ideologies at best misleadingly and at worst erroneously explains that ‘[s]tates such as the UK have [. . .]
introduced laws banning expressions of religious hatred’ (Heywood 2012:
322). Similarly, Waldron writes that ‘[i]n Britain, there are laws forbidding the expression of racial hatred’ (Waldron 2010: 1642). These statements belie the true nature of incitement to hatred law in the UK, both as it is written and as it is interpreted and applied by the courts. It would be far more accurate to say that public order law in the UK forbids the intentional stirring up of hatred on the grounds of race, religion, or sexual orienta-tion, and that depending on their interpretation of the facts in particular cases the courts might or might not regard a defendant’s public expression of hatred as amounting to the intention to stir up hatred. This level of specificity helps to honor distinctions between different clusters of laws/
regulations/codes that constrain uses of hate speech, such as between laws/regulations/codes disallowing the public expression of hatred [2.3]
and laws/regulations/codes banning the use of speech or other expressive conduct with the intention of stirring up hatred [2.4].
But why does this specificity matter normatively? Because normative principles that appear to N-warrant hate speech law typically lend greater N-warrant to some clusters of laws/regulations/codes than others; con-versely, principles that purport to rule out all hate speech law are, on closer inspection, devastating against some clusters of laws/regulations/codes but relatively helpless against, or inappropriately applied to, others—this, at least, is what I aim to demonstrate in Chs. 2–9.
NOTES
1 . David Riesman cites the example of Decree-Law of 17 Jul. 1931 (as amended by Decree-Law of 10 Aug. 1931), which the German state used to stem the flow of published attacks on ‘democrats’, ‘Reds’, ‘socialists’, ‘Jews’, ‘liberals’, and ‘Catholics.’ The need for this legislation reflected the fact that such attacks (Riesman 1942: 729) ‘ran little risk of a prosecution for libel, since vague groups of this sort, it was held, could not be defamed.’
2 . Riesman (1942: 742) cites the case of R. v. Osborne (1732) 25 Eng. Rep. 584 (involving a printed libel that members of the Portuguese Jewish community
living in London had murdered a Jewish woman and her illegitimate child by a Christian lover) as evidence of the fact that the English common law offense of seditious libel ‘was occasionally invoked to curb attempts “to promote feelings of ill-will and hostility between different classes” of His Majesty’s subjects.’
Note that the English common law offense of seditious libel was abolished by s. 73 of the Coroners and Justice Act 2009.
3 . Riesman (1942: 743) cites a nineteenth-century French law, Art. 10 of the Law of 25 Mar. 1822, ‘which punished those who publicly sought to disturb the peace by inciting citizens to contempt or hatred against one or more classes of persons.’ As Riesman himself concedes (ibid.), ‘[t]his, of course, was not a libel law in the American sense, for it covered mere derogatory expressions like
“down with the priests”, or the “aristocrats”, or the “bakers.”’
4 . Art. 137c of the Penal Code (as amended in 1992).
5 . s. 423 of the Penal Code.
6 . Art. 510(2) of the Penal Code.
7 . See, e.g., Ch. 38, para. 27 of the Illinois Revised Statutes; Ch. 272, s. 98C of the Massachusetts General Laws; s. 609.765 of the Minnesota Statutes;
s. 45-8-212 of the Montana Code; Ch. 200, s. 510 of the Nevada Revised Statutes.
12 . See, e.g., the Advisory Committee on the Council of Europe Framework Con-vention for the Protection of National Minorities, Opinion on Austria, 16 May 2002, para. 85; Opinion on the Former Yugoslav Republic of Macedonia, 27 May 2004, para. 55; Second Opinion on Estonia, 24 Feb. 2005, para. 73.
See also the Committee on the Elimination of Racial Discrimination, General Recommendation No. 27: Discrimination against Roma, 16 Aug. 2000, para. 9.
13 . It including the following lyrics: ‘Oooh Will Young here, mmmmh. I’m here, it’s Will’s birthday and as the years go by I get more very gay. When you saw me years ago you didn’t know, but now I’m the gayest fella you probably know. Mmmm I like to wear a silly hat, I get camper by the hour, oh would you look at the muck in here. I’m Will Young and I’m gay.’
122 of 1993, converted with amendments into Law No. 205 of 1993).
24 . s. 135(a) of the Penal Code.
25 . Art. 393(a) of the Penal Code.
26 . Ch. 16, s. 8 of the Criminal Code.
27 . Art. 216(2) of the Criminal Code.
28 . In England and Wales, s. 3 of the Football (Offences) Act 1991 (as amended by s. 9 of the Football (Offences and Disorder) Act 1999).
29 . See, e.g., s. 53-37 of the Connecticut General Statutes.
30 . s. 185 of the Criminal Code.
31 . 324 So.2d 652.
36 . s. 3(2)(b) of the Information Technology (Intermediaries Guidelines) Rules, 2011, which supplements the Information Technology Act 2000 (as amended by the Information Technology (Amendment) Act 2008).
37 . Rule 12(i) of the Editors’ Code of Practice issued by the Press Complaints Commission (PCC).
38 . 80 Adjudication issued 04/01/10.
39 . Full text available at: http://www.pcc.org.uk/cases/adjudicated.html?article=
NjEyNw== (last accessed 28/11/14).
40 . Art. 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
41 . Art. 5 of the Additional Protocol to the Convention on Cybercrime, Concern-ing the Criminalization of Acts of a Racist and Xenophobic Nature Committed through Computer Systems.
42 . See, e.g., Vejdeland and Others v. Sweden .
43 . Consider the reservations entered by Japan and the US in relation to Art. 4(a) of the ICERD.
44 . For example (Sarrazin 2009): ‘Integration is an accomplishment of those who integrate. I don’t have to accept anyone who doesn’t do anything. I don’t have to accept anyone who lives off the state and rejects this very state, who doesn’t make an effort to reasonably educate their children and constantly produces new little headscarf girls. That is true for 70% of the Turkish and for 90% of the Arab population in Berlin. Many of them don’t want any integration, they want to live according to their own rules. Furthermore, they encourage a col-lective mentality that is aggressive and ancestral [. . .].’
45 . No. 48/2010 (CERD, 26 Feb.).
46 . At para. 12.8.
47 . Formerly the Human Rights and Equal Opportunities Commission (HREOC).
48 . HREOCA 23 (involving a complaint made against a newspaper for the use of epithets referring to English people under s. 18C(1) of the Racial Discrimina-tion Act 1975).
49 . FCA 1103 (involving a complaint made against a journalist and newspaper for remarks made about mixed-race Australians, under s. 18C(1) of the Racial Discrimination Act 1975).
50 . At paras. 370–393.
51 . At para. 414.
52 . s. 226 of the Criminal Code.
53 . See, e.g., ss. 76–80 of the Criminal Code of the State of Western Australia (as amended by s. 6 of Law No. 80 of 2004); s. 4 of the Racial Vilification Act 1996 of the State of South Australia; s. 8 of the Racial and Religious Tolerance Act 2001 of the State of Victoria.
54 . Art. 283(1) of the Penal Code.
55 . s. 153A of the Penal Code.
56 . Art. 249 of the Criminal Law and Art. 47 of the Public Security Administra-tion Punishments Law.
57 . s. 135(2) of the Penal Code.
58 . s. 130(2) of the Criminal Code. amended by the Racial and Religious Hatred Act 2006 and s. 74 and Sch. 16, para. 14 of the Criminal Justice and Immigration Act 2008).
72 . Art. 149a of the Penal Code (enacted by Law No. 9.155 of 4 Dec. 1933).
79 . s. 46 of the Disability Discrimination Ordinance, Hong Kong Special Admin-istrative Region of China.
80 . Art. 9(27) in conjunction with Art. 4 of the Federal Law for the Prevention and Elimination of Discrimination.
81 . Art. 61 of the Human Rights Act 1993.
82 . s. 10(1)(c) of the Promotion of Equality and Prevention of Unfair Discrimina-tion Act 2000.
83 . Art. 31 of the Statute on Freedom of Opinion and Information and the Perfor-mance of Journalism.
89 . See, e.g., Art. 26(4) of the Regulations on the Administration of Publication;
Art. 25(4) of the Regulations on the Administration of Movies; Ch. 3, para.
2(b) of the Generic Code of Practice on Television Programme Standards; para.
7(b) of the Radio Code of Practice on Programme Standards, Hong Kong Spe-cial Administrative Region of China.
90 . s. 19(d) of the Kenya Information and Communications (Broadcasting) Regu-lations, 2009.
91 . Art. 5 of the Code of Ethics of the Congolese National Press Union.
92 . Art. 47 of the Constitution.
93 . Art. 47 of the Constitution.
94 . Art. 30 of the Constitution.
95 . Art. 6 of the Audiovisual Media Services Directive of 2010 (replacing Art. 3b of the Television without Frontiers Directive).
96 . Art. 1(a) of the Framework Decision on Combating Racism and Xenophobia by Means of Criminal Law.
97 . Consider the decision in Balsyte˙-Lideikiene˙ v. Lithuania . 98 . Arts. 261 and 262 of the Penal Code.
99 . ss. 319(2) and 319(3)(a)(c) of the Criminal Code (as amended by An Act to Amend the Criminal Code (Hate Propaganda) of 2004).
100 . ss. 505(2) and 505 Exception of the Penal Code.
101 . ss. 11(1)(b) and 14(2)(a)(c) of the Racial Discrimination Prohibition Act 26 of 1991, as amended by the Racial Discrimination Amendment Act 26 of 1998.
102 . Decision 30/1992 (V. 26.) AB (Hung. Const. Ct.), at IV, 5.
103 . No. 94/2421/X2 (EWCA, 11 Apr.), 6 Archbold News 2 (involving the dissemi-nation of anti-Semitic written materials).
104 . s. 29J of the Racial and Religious Hatred Act 2006.
105 . s. 19(1) of the Defamation Act 2002.
106 . ss. 181 and 319(1) of the Criminal Code.
107 . s. 176 of the Penal Code.
108 . Art. 486(b) of the Criminal Code (as amended by Proclamation No. 414/2004).
109 . s. 130(1) of the Criminal Code.
116 . 2 SCR 100 (involving the deportation of a member of a hard-line Hutu politi-cal party with respect to charges brought by Rwandan authorities for incite-ment to murder, genocide, and hatred).
117 . These included the following: ‘Something else which may be called “not allowing ourselves to be invaded” in the country, you know people they call
“Inyenzis” (cockroaches), no longer call them “Inkotanyi” (tough fighters), as they are actually “Inyenzis”’ [trans.]. ‘These people called Inyenzis are now on their way to attack us’ [trans.].
118 . EWHC 2825 (Admin.).
119 . At para. 83.
120 . s. 318(1) of the Criminal Code.
121 . s. 261a of the Law against Support and Dissemination of Movements Oppress-ing Human Rights and Freedoms.
122 . Denial of Holocaust (Prohibition) Law 5746-1986.
123 . Emergency Ordinance No. 31 of 13 Mar. 2002.
130 . s. 3h of the National Socialism Prohibition Law of 1947 (as amended in 1992).
131 . Art. 1 of Negationism Law of 23 Mar. 1995 (as amended in 1999).
132 . s. 261a of the Law against Support and Dissemination of Movements Oppress-ing Human Rights and Freedoms.
133 . Art. 170(2) of the Criminal Code.
134 . s. 131 of the Criminal Code.
135 . Art. 6(1) of the Additional Protocol to the Convention on Cybercrime, Con-cerning the Criminalization of Acts of a Racist and Xenophobic Nature Com-mitted through Computer Systems.
136 . Art. 1(c)(d) of the Framework Decision on Combating Racism and Xenopho-bia by Means of Criminal Law.
137 . See, e.g., Garaudy v. France. that is prejudicial to another person’s dignitary rights (cf. de Villiers 1899:
21–22).
147 . Art. 140(3) of the Penal Code (introduced by Law No. 9.459, 1997, as amended by Law No. 10.741, 2003).
148 . Common law offense or delict of injuria (civil) or crimen injuria (criminal).
149 . (2) SA 260 (N) (involving a lawsuit for injuria after the defendant repeatedly called the plaintiff a ‘kaffir’ and assaulted him)
149 . (2) SA 260 (N) (involving a lawsuit for injuria after the defendant repeatedly called the plaintiff a ‘kaffir’ and assaulted him)