The digital world has made it all too easy for repellent and unedited use of language to offend many people. But regulating at the expense of important rights to express even the most challenging ideas is not necessarily the way forward.

Imagine a country where you are guilty until proven innocent. A country where you discover that you have broken the law only after committing an offence hitherto unknown to you. A country where, once an accusing finger has been pointed in your direction, you are suspended from your job before the ‘facts’ have been determined, colleagues avoid you and people who were once considered friends desert you—all because of something, perhaps just a few words, you said or wrote.

Maybe this sounds like Mao’s China or Stalin’s Russia? Certainly, the control of language has long been a key item in the toolbox of autocratic regimes (see box: Banning whole languages). But outlawing entire languages, as those regimes did, is not the only form of control.

Orwellian Newspeak

Some may think our social and political discourse is becoming angrier, ruder and more prejudiced, while others argue that people are too sensitive or need to toughen up. One thing though remains undisputed – there is considerable disagreement, both within society and the law, on where the line should be drawn when it comes to limiting freedom of expression in order to ‘deal’ with hate speech.

We have long had laws which curtail freedom of speech in limited spheres, for example defamation, obscenity or the incitement of discrimination or violence. Though the concept is old, the expression ‘hate speech’ is relatively new. It originated in the US in the late 1980s when a group of legal scholars, observing a problem of racist (and sexist) abuse at colleges, tried to address what they saw as a legal lacuna in dealing with ‘racist hate messaging’.

In a 1990 article in the Duke Law Journal entitled ‘The Chilly Climate on College Campuses: An Expansion of the “Hate Speech” Debate’, Bartlett and O’Barr argued that ‘universities must be pressed to throw their moral weight around […] university administrators should publicly identify and condemn specific, objectionable behaviors—those that are subtle and unintentional as well as blatant and egregious, and those that cannot be legally regulated as well as those that can’.

This casual widening of the concept of hate speech, and delegation of its oversight to institutions, foreshadows some present-day cases at universities and elsewhere. The expression ‘hate speech’ is now widely used by groups ranging from legislators and courts to the media – not to forget the general public. Its dual legal and non-legal usages seem to emphasise the apparent impossibility of reaching a commonly understood definition.

Hate speech

The expression ‘hate speech’ encompasses a daunting range of possible utterances and yet has no agreed definition in international law. International law protects freedom of expression, in particular under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), but the right is subject to limitations. In practice this means that where measures less onerous than restricting freedom of expression exist, they should be used. Furthermore, any statement must be examined to determine if there is an overriding public interest in its expression.

Absent the intentional use of racist or discriminatory speech to incite ‘discrimination, hostility or violence’ (as proscribed by Article 20 of the ICCPR), we enter even murkier territory. Statements that could be described in common parlance as offensive, insulting or inflammatory may be determined illegal in various national or international courts, but even so there is no clear pattern emerging.

As early as 1976, the European Court of Human Rights tried to sharpen the legal line in the case of Handyside v the United Kingdom, holding that ‘information’ or ‘ideas’ that ‘offend, shock or disturb’, as well as those favourably received or inoffensive, are protected under the right to freedom of expression. But difficulties arose when it came to further deciding what this meant in individual cases. As an article by legal scholars Mchangama and Alkiviadou in the Human Rights Law Review of December 2021 concluded: ‘the Court has since developed a substantial body of inconsistent case-law allowing restrictions on “hate speech” that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR.’

Freedom of expression at all costs?

When it comes to offensive speech at the national level, the world’s largest democracies take fundamentally different approaches. A Council of Europe decision requires EU Member States to criminalise certain forms of hate speech. A 2018 report by non-governmental organisation ARTICLE 19, which defends and promotes freedom of expression and freedom of information, concluded this was ‘sometimes in circumstances which are broader and in the penalties more severe’ than those envisaged under the ICCPR. On the other hand, in the US, the sanctity of freedom of expression under the First Amendment to the Constitution continues to prevail.

Alexa Koenig is Co-Chair of the IBA’s Human Rights Law Committee and Executive Director of the Human Rights Center at the University of California’s Berkeley School of Law. ‘The United States’ approach to speech under the First Amendment emphasises the power of public debate to help clarify “truth” and to counter problematic speech, with the goal of creating an informed public and a robust marketplace of ideas’, says Koenig.

The US stance has a long history. In a 1927 case, Whitney v California, US Supreme Court Justice Louis Brandeis, in delivering a rousing defence of freedom of speech, advised that the remedy for messages that people dislike or dispute is ‘more speech, not enforced silence’.

Meanwhile, women’s groups are complaining that the female sex has been excluded as a protected group, although ‘sexual orientation’, ‘transgender identity’ and ‘variations in sex characteristics’ are all included. This led to a Working Group being established, chaired by Director of the IBA’s Human Rights Institute, Baroness Helena Kennedy QC, to determine whether the characteristic of sex should be added to the current law or if a separate crime of misogyny should be established.

Even if agreement is reached between proponents and opponents of the law, how easy is implementation likely to be? The Scottish example illustrates the problem that, when laws appear to overreach, especially when they go beyond international law standards, they may ultimately risk defeating their purpose. Far from creating cohesion and harmony, ill-drafted laws risk dividing societies further.

Guilty by inference

But even before laws come into play, there can be difficulties. There are numerous contemporary instances, particularly in academia, where allegations of racism or homophobia have had dramatic consequences for those accused before any findings as to guilt have been made by internal investigations or in a court of law.

A number of such cases were examined in a 2021 article published in The Atlantic magazine. In ‘The New Puritans’, Anne Applebaum (author of a book about the Sovietisation of Central Europe in the 1940s) offers an historical comparison with today’s situation, noting that for people suspected of offending against perceived social norms in Stalin’s Russia, social exclusion and isolation were more chilling and permanent punishments than clear-cut and predictable legal sanctions. Applebaum may be delivering a warning for our times when she writes that ‘much of the political conformism of the early Communist period was the result not of violence or direct state coercion, but rather of intense peer pressure’.

Freedom of speech advocates fear this exact outcome and are concerned that uncertainty regarding what will be punished, and how, will lead to self-censorship and stifle open debate. Rather than the laws themselves, this atmosphere may constitute a more pernicious attack on freedom of expression, regardless of the political environment. It can lead to publishers, employers and others who may be held responsible (either in law or in the arena of public opinion) to err on the side of caution by bowdlerising or refusing to publish potentially controversial ideas.

This points to a fundamental problem in expanding categories of hate speech beyond those that clearly intend to incite violence or discrimination. How is it possible to know where the line will be drawn? And, if this is not achievable, how can the principle of legal certainty be upheld? As Koenig says: ‘There's a reason that definitions are so central to legal practice; we can't effectively criminalise or otherwise prohibit something that can't be defined.’

Plan of action

The ‘Rabat Plan of Action’, developed by the United Nations in 2012, lays down guidelines for determining what is – and what is not – hate speech under international law. The plan states, for example, that prohibitions should be aimed at ‘the advocacy of discriminatory hatred that constitutes incitement to hostility, discrimination, or violence, rather than the advocacy of hatred without regard to its tendency to incite action’.

It also establishes several tests to be applied to possible hate speech, such as the identity and influence of the speaker; frequency and volume of statements; and the likelihood of harm occurring as a direct and imminent result of the speech. Unfortunately, the guidelines have generally not been used by governments when developing their national laws.

Koenig draws attention to the need to understand the effect of online abuse and insults before determining whether more legal regulation is needed. ‘While the laws that we have continue to be powerful tools for balancing free speech with protection against violence’, she says, ‘we desperately need more empirical research to help us better understand the positive and negative effects that digital means of transmission have in fostering hate and increasing the likelihood of violence against targeted individuals and communities’.

Kemp also stresses the importance of other approaches, such as ‘raising awareness of the human rights framework through public education, police training and strong oversight mechanisms. Education about the importance and legal framework of freedom of speech and about the damage that incitement of hate can do would both go a long way toward that goal’.

While we need to use the law to protect individuals and groups against language which is likely to incite violence, the law has not always been judged the right vehicle to address all insulting words or offensive phrases, no matter how repulsive we may find them.

In a recent instance, Canadian comedian Mike Ward was convicted for ridiculing a disabled child singer, including mocking physical aspects of his disability. The conviction was overturned by the Canadian Supreme Court in 2021 holding that the singer was targeted not because of his disability but because of his fame, and that while ‘making fun of a person’s physical characteristics may be repugnant […] expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted’. It is worth noting though that the Court was split 5-4 in its decision, underlining the difficulty in reaching unanimity on such issues.

Perhaps then, the question that we need to ask is why, beyond fundamental international law definitions, agreement on what constitutes hate speech is so elusive? Are national governments guilty of pandering to perceived societal shifts for fear of losing votes? Are they trying to find a way to ‘fast-track’ or engineer widespread social change by means of the law? It’s not always easy to determine, but, if governments do not tread carefully, they risk doing more harm than good for their societies in the long term.

Anne McMillan is a freelance journalist and author. She can be contacted at basestation2011@gmail.com