Atlantic Community:Open Think Tank Article "Hate Crime Laws vs. Fundamental Freedoms"

Issues Navigator

Global Challenges

Strategic Regions

Domestic Debates

Tag cloud

NATO US Russia Afghanistan EU Iran Obama China climate change

June 24, 2011 | 8 comments | Print | E-Mail Your Opinion

Hate Crime Laws vs. Fundamental Freedoms

Victoria Naselskaya: Creating a framework to distinguish between freedom of expression and hate speech is one of the most challenging tasks lawmakers face. Since, “theoretically, the expression of anti-Semitic or racist speech may also fall into the scope of this basic freedom.”

Prior to the UN general assembly that will take place in New York in September 2011, some Israeli websites and bloggers are calling for Iranian President Ahmadinejad to be prevented from attending. These appeals are rooted in the radical anti-Israeli rhetoric often adopted by the Iranian President. During a press-conference on comparative hate crime legislation in the United States and Europe, held at the American Jewish Committee office in Berlin on June 10, 2011, it was announced that the Iranian President, notorious for his Holocaust denial speeches and public appeals to “wipe Israel off the map”, could theoretically be prosecuted according to national and international hate crime legislation and conventions, though in reality this is very unlikely to happen.

A comprehensive study on national and EU legislative efforts to tackle hate crimes, including hate speech, xenophobia and anti-Semitism was conducted by the international law firm Hogan Lovells and commissioned by AJC’s Berlin – Ramer Institute. The boundary between freedom of expression, including the expression of racist speech, and legally curtailed or even criminalized hate speech varies across different national legislations and particular cases. The study found that “the protection of speech and expression often conflicts with the idea of effectively prohibiting and prosecuting hate crimes.”

Speech which is considered to be “defamatory” or “insulting”, inciting “discrimination, hatred or violence against persons based on nationality, race, religion or other factors” could be limited through various European legal instruments. Moreover, some members of the EU, including Austria, Belgium, France and Germany, have criminalized Holocaust denial. Meanwhile, Holocaust denial is not considered to be a crime in the United States. The study found that in the United States “hate crime laws are said to have a “chilling effect” on free speech”. Free speech activist Wendy Kaminer even draws a parallel with George Orwell’s 1984, arguing that hate crime laws can create “thought crimes”.

The study covered legislation in Germany, France, Poland, the United Kingdom, the European Union and the United States. Deidre Berger, Director of the AJC Berlin Ramer Institute commented that “[d]espite differing definitions and approaches in the US and the EU on hate crimes, this study reveals a common transatlantic stance on the importance of condemning and punishing hate crimes.”

Read the full report to learn more about this pressing issue.

Victoria Naselskaya is an editor at atlantic-community.org.

8

I like this Article! What's this?

Comments

Niklas Anzinger

June 26, 2011

Niklas Anzinger, Student of Philosophy & Economics, Platinum Contributor (708)

3

I like this comment! What's this?

In his new book "Worse than war" American scholar Daniel J. Goldhagen argues that the precondition of genocide is an "eliminationist" language, attitude and policy. He considers eliminationalism to have certain factors that can be observed before the occurrence of genocidal annihilation - therefore, the international community has to observe the use of eliminationist language and take measures to prevent genocide.

Have you heard of this claim? Do you consider this concept plausible?

I think, we can observe eliminationist language in the Iranian regime and active will to achieve the technical possibility to perform genocide. Holocaust denial is the wish to perform new killings.

Victoria Naselskaya

June 26, 2011

Victoria Naselskaya, Humboldt University of Berlin, Master in British Studies (Politics, Law, Economics), Silver Contributor (54)

2

I like this comment! What's this?

Niklas, thank you very much for such an informative comment. I share the concern raised by Daniel J. Goldhagen. The usage of eliminationist language causes the distortion of history and subsequent ignorance of the "victims" of this rhetoric. This scenario could indeed serve a precondition for a new round of violence. Nevertheless, I hope that the people of Iran will not fully rely on history lessons given to them by their President.

Niklas Anzinger

June 28, 2011

Niklas Anzinger, Student of Philosophy & Economics, Platinum Contributor (708)

1

I like this comment! What's this?

Indeed, I think the Iranian people are not very eager to follow their presidents apocalyptical fury. Nevertheless, a nuclear bomb would be a different scenario as the genocides e.g. in Rwanda and Guatemala were set up. Most genocides required the fury of the mob or strong sentiments of society towards a particular group, while weapons of mass destruction have the potential to cause huge damage in the hands of few. This is the reason why proliferation of WMDs is top priority in international security.

But your excellent article introduced the dilemma when we look at language and rhetoric as a precondition for genocide. After all, non-apocalyptical politicians could adopt a milder tone in international organizations while their executive´s language in domestic can not be taken into account. The difference of president Ahmadinejad to former representatives of the Islamic Republic of Iran is his rhetoric and aggressive behavior, not the goals. There are different strategies and after all, there are hardly any effective political options to take preventive measures against the perpetrators of mass killings. I very much agree with Goldhagens notion that genocide is a "systemic" problem of the modern world that leads into finding broad misconceptions in the international community.

The problem has to be addressed by policymakers, politicians, NGOs and whatsoever constantly.

John Hadjisky

June 30, 2011

John Hadjisky, Blogger, Platinum Contributor (324)

3

I like this comment! What's this?

It is refreshing to think that perhaps it is finally possible to have these sorts of discussions in public, discussions in which the pros and the cons of hate crime laws are considered.

In my experience of the 1980s-90s, expressing this sort of skepticism of hate-crime laws was taken as a defense of hate itself. I feel we have reached the point where any real or imagined benefits of hate crime laws is more that outweighed by the chilling effect on legitimate discourse. As a veteran of those rhetorical wars, I feel entitled to say, "I told you so".

The chilling effect experienced by private citizens is bad enough; but it has gone beyond that and become just another tool in the politicians toolbox. How else to explain the absurdity of a fairly tame film by a controversial rising star of the Dutch political establishment (whose overall views are generally too conservative for my taste) being prosecuted as hate speech, while some ordinary Dutch citizens can repeat the hateful filth of Hamas or Ahmadinejad, and distribute videos of same, without much fear of prosecution? Yes, Wilders was acquitted; but why was he there in the first place, when there are so many more blatant cases?

The law should not sully itself with petty questions of what is an insult and what is a legitimate critique. Language and meaning is far too complex, and standards change far too rapidly. A far better approach is to make clear the line between speech and physical violence; that line is not always clear, but it is much, much clearer than the line between criticism and insult. Only when anti-social behavior crosses the line into violence, should the law be involved. The rest is for civil society to work out.

John Hadjisky

June 30, 2011

John Hadjisky, Blogger, Platinum Contributor (324)

3

I like this comment! What's this?

@Niklas: I have not read the book. I agree that eliminationist language is one of the many preconditions or warning signs. I think a far more reliable warning sign for genocide would be a rash of violent actions against people, or against symbols (icons, signs, buildings, etc.) that is done by individuals or small groups.

In the US political culture, we would rely on private, civil society groups to monitor and report on this language; the authorities would not get involved unless there was some reason to suspect that a crime had been committed. In the European political culture(s), it perhaps makes sense to have the authorities themselves involved in monitoring eliminationist rhetoric. However, they should limit themselves to situational awareness, and not monitor language for the purposes of prosecution. If there is a violent crime, they would use their situational awareness to understand the context of the crime and determine if the individual or group posed a risk of evolving towards the unthinkable.

So, is my approach too Anglo-Saxon?

Victoria Naselskaya

June 30, 2011

Victoria Naselskaya, Humboldt University of Berlin, Master in British Studies (Politics, Law, Economics), Silver Contributor (54)

1

I like this comment! What's this?

@ John

I guess there should be a broad legal framework to establish a line between freedom to express critical opinion and hate speech which can incite physical violence.
Though, I find Common law approach very handy while dealing with particular hate crimes. Laws are often indeed too broad to be blindly applied without taking into account all the details, circumstances and shades of meaning of a particular speech.

Niklas Anzinger

June 30, 2011

Niklas Anzinger, Student of Philosophy & Economics, Platinum Contributor (708)

0

I like this comment! What's this?

@ John

I agree with your argument to some extend. But there are few more cases to mention. There are public entities and institutions open for debate, discussion and controversy. Think for example of the United Nations radio programme, which brought the propaganda of the PLO into other Arab and Muslim nations to support the struggle of the Palestinians. Or the infamous Durban "anti-racism" conference, basically an anti-Israel hatefest. I would add restrictions to your argument; there are some cases when institutions and public entities have to decide a policy of a legal ground that restricts the usage of their instruments.

What I would critisize on the ground of your Millian (indeed Anglo-Saxon argument) is that it assumes the framework for a pluralist and free public discourse as given. Even Mill himself admitted that it is only valid in democratic environments and it could not be generalized. I see an inconsistency there, nevertheless a strong claim.

Unregistered User

July 7, 2011

brian harrison

0

I like this comment! What's this?

that's all as about as much use as banning mass graves

Community

Jobs / Internships

Job offer: Political Analyst at ETH Zurich Job offer: HUMBOLDT-VIADRINA School of Governance Master of Public Policy More

Call for Papers

2nd International Conference: Strategic & Geopolitical Issues in the Contemporary World First International Conference of Young Security Policy Experts More

Atlantic Events

Student Debates on Georgia and NATO Danish Atlantic Youth Seminar (DAYS) 2012 More

Partners

Partner Communities Reference Links Partner Links

User of the day

Jean-Paul Gagnon

Jean-Paul Gagnon

Member since
May 16, 2011

Poll

Should NATO intervene in Syria?

No

Yes

Yes, but only with a mandate from the UN Security Council