Balancing Hate-Speech Laws with the Concept of Free Speech - Essay Example

Draft Balancing hate speech laws with the concept of free speech s Submitted by s: Hate speech aims at putting peopledown based on their race or their ethnic origin, religion, gender, age, physical condition, disability or their sexual orientation and this normally occurs through different means such as phone calls. Text messages, fliers and graffiti (Cortese, 2006, p. 1). When the case of hate speech is anonymous, the victim of this hate speech cannot be able to defend him or herself and this makes the sender of the message hateful and cowardly. However, responding to hate messages in a verbal manner is not always advised since this can lead to hate crimes that may end up in assault or murder of the victim. Hate speech cannot be looked at as an invitation to politely have a talk or a chat since it is mainly aimed at ambushing the victim, insulting them and silencing them at the same time. Therefore, it comes as no surprise that campuses where highly publicized incidence of hate speech have taken place report a decrease in the number of minority enrollment since the students that are considered to be of colour decide to attend the schools that have an environment that is safer from them. Hate speech has reached proportions that are very high lately in the schools and colleges with many of the victims being subjected to threats on the grounds of their race, gender, ethnicity, religion or their sexual orientation and many of the victims have experienced this attacks more than once. In response to this situation that is getting out of control, some of the universities have had to put some regulations in place that forbids speech that assaults the ethnic minorities and other groups that are vulnerable. Individuals have also been subjected to punishment when their behavior becomes an obstacle to the educational opportunity that another person has been able to acquire. These policies have been the source of debates that are heated and far-reaching discourse on how practical they are. In the Article 19 of the United Nations’ Universal Declaration of Human Rights and the First Amendment to the Constitution of the United States, there is an explicit recognition of the need to protect free expression and this shows that the principle of free speech is fundamentally important (Warburton, 2009, p. 1). When this this freedom is not protected, it can be very fragile to deal with and will lead to various situations that might get out of hand and the original idea of the First Amendment was to stop the central government from being able to make intrusions as far as this area is concerned. It aims at safeguarding free speech so that the government cannot use censorship as a legitimate tool so that it can avoid criticism that is directed at a policy that it enacts. Free speech has specific value in a society that is democratic since in a society of this nature, the voters have an interest in hearing and choosing from a wide range of opinions while being able to access facts and interpretations as well as views that may not necessarily be the same as theirs even in the event that the views that they come in to contact with are politically, morally or personally offensive to them. Television, radio and other forms of print media may not always be the method that is used to communicate this opinions since some are presented in novels, poems, films and even cartoons as well as lyrics to songs. Sometimes they are expressed symbolically through a variety of actions that may include burning of flags and effigies. The members of a democracy are also interested in the citizens being active participants in the political discourse rather than being passive recipients of the policies that are generated from beyond them (Warburton, 2009, p. 3). If a situation arises that there is an interpretation of the law that is evil, then obscuring the interpretation will be seen as another evil and this will be bigger if the laws are written in a manner that the people will find difficult to understand and necessitating that only a handful of people be mandated to make an interpretation for the rest of the population. When the number of people that understand what the laws imply increases, then there will be a considerably increase in the crimes that are committed that are related to these laws since the ignorance to the punishments that are prescribed when these laws are broken are what escalates the rates at which the law is broken (Mclaughlin, Muncie and Hughes, 2003, p. 18). In the contest of hate speech and the concept of free speech, there is need for a definition that is clear so that the cases that come up a can be distinctively be identified and categorized an if the laws is broken the perpetrators are punished. Clear lines between hate speech and free speech should be drawn to avoid the cases of confusion and overlap. Discussions that are associated with the policy areas that encompass hate speech regulation are required to consider the context within which the regulations occur. The extent that the legal framework protects the free speech, who the hate speakers are and the utterances that they make, and the best way to apply the laws so that it can be able to deal with the situation are some of the issues that should be considered (Gelber and Stone, 2007, p. 2). The traditional and liberal, civil rights position on free speech is heavily being criticized and the feminists and African-American intellectuals as well as many white male scholars have questioned that notion that strong free speech protection is not only defensible but is the best route to arriving at a society that is just (Wolfson, 1997, p. 1). The legal system that exists in the United Kingdom and many other states that are modern forbid the distribution of any ideas that are antagonistic to groups that are racial. For instance, the 1965 Race Relations Act made any incitement that would lead to racial hatred to become an offence in the UK in the circumstances where the person that is accused had the intention of inciting hatred that had a racial nature and the language used was considered to be threatening, abusive of had an insulting tone and was very much likely to flair racial hatred (Sadurski, 1999, p. 179). In several other European countries, the legal systems go further by criminalizing the expression of ideas that vilify or insult racial groups. This for instance can be seen in Netherlands where it is an offense to purposefully offer public opinion to the ideas that are insulting to a particular group of people in relation to their race, religion, conviction or their sexual preference. The requirement for legal probation of hate speech is included in a number of conventions and Acts that do not expressly require that the governments should ban hate speech. What can be considered to be the strongest regulation is contained in the International Convention on the Elimination of All Forms of Racial Discrimination which demands in its Article 4 the state parties to declare as criminal offences all the ideas that are disseminated that are based on racial superiority or hatred, incitement to racial discrimination and the participation in the organisations and activities that endorse and incite racial discrimination. The United is an exception with it principle that prescribes that speech is not supposed to be prohibited regardless of the offensiveness that it contains except if there is clear and present danger that it will stimulate imminent action that will be of an unlawful nature. The last time that a statute that outlawed defamation of the groups that were racial and religious was maintained was in 1952 in a decision that was arrived at by the United States Court by a margin of five to four. The case involved a white supremacist that was being prosecuted under a state law which had forbidden any publication that exposed the citizens to scorn, mockery and defamation that was based on their race, color, creed or religion. Even though the decision has never been formally overruled, it has been generally considered to be obsolete and therefore no longer valid. The decision has never been relied upon in any subsequent federal decision in the cases that are of the same nature and it was considered a misfit that should be overruled in the constitutional system as it did not conform to the guidelines that were set by the First Amendment. The laws that govern hate speech have progressively become unexceptional in the western liberal democratic orders which have been able to embrace the ideas of non-discrimination and equal protection of the law. In this setting, hate speech is seen as speech which is particularly harmful since it contributes towards a state of hatred and violence that is in the direction of the marginalized and disempowered sections of the community and also violates the basic human dignity of the victims. The validations for hate speech legislations consist of claims that it might be able to reduce the incidences of hate speech which will in effect reduce or even improve the situations that are characterized by hatred, contempt or violence towards the groups that are particularly identifiable. Those that are against these kinds of laws and are supporters of free speech are of the argument that the best way to counter hate speech is through the maintenance of principles that will ensure that speech will remain as free as possible for majority of the people. Clearly in history, speech has been always been a part of the personal rights that a person is entitled to and this therefore means that the creation of suitable, efficient and useful response to hate speech must be able to weigh up two interests that will include the intention to maintain the free speech conditions and the intention of regulating that is aimed at preventing the harms that are as a result of hate speech. These issues bring a concern that is complex to handle since on one side of the issue there is the free speech principle which prescribes that speech is supposed to be free from the interference by the state and on the flip side, it can be seen that many types of speech are already being regulated which include the speech that is associated with defamation, obscenity, commercial speech and the incitement to commit acts that are criminal. Any regulation that is aimed at dealing with hate speech immediately conflicts with free speech and this makes it very difficult to come up with a policy that is designed to acknowledge that speech in general is supposed to be free from any restriction while at the same time being able to define hate speech clearly enough so that it regulation can take effect. These policy demands that are conflicting are usually perceived by the policy makers that deal with issues that are related to speech in terms of striking a proper “balance” (Gelber, 2002, p. 2). The hate speech policy makers strive to express a will to achieve a “balance” that exists between the right to free speech and the right to lead a life that has no harassment or intimidation and it can also be perceived as a “balance” the policy demand to restrain any interference in the exercise of the speech rights and the policy demand to meddle in some occasions on the exercise of the speech right to inhibit and restrain the evils of hate speech. The legal position on the issue of speech is clear in that speech is to be valued as one of the vital elements of the democratic society and a fundamental instrument for the self-realization and social growth. The traditional scholars believe that the remedy for speech that is troublesome is more speech but not regulation that comes from the government. Nadine Strossen who is a liberal theorist states that restricting hate speech is a solution that is unrealistic to a situation that is complex. The arguments continue by stating that the restriction of hate speech will only serve to mask the hatred that exists between groups and not get rid of it. The proponents of hate speech regulation do not see any value in the protection of speech that is bias against certain groups that are already under oppression and go ahead to question that necessity and logic of using the First Amendment to protect the speech that has no social value and is also social and psychologically damaging to the minority groups (Demaske, 2011, p. 89). In the 1942 Chaplinsky versus New Hampshire the court developed the categorical approach to the speech restrictions that were permissible and under this approach, certain groups of speech that included fighting words, obscenity and defamation could be subject to government restrictions since that category of speech had been seen to contain no social value. Chaplinsky was arrested under the New Hampshire statute for the statements that he had made to City Marshall Bowering and the court upheld his arrest and the New Hampshire statute (Demaske, 2011, p. 99). Through this ruling, the judge not only gives a voice to the categorical approach, but also creates the category of speech by stating that the utterances that were in question were not an important part of any exposition of ideas and were of minute social value that any benefit that might come out of them will be shadowed by the social interests in order and morality. The judge continues to explain that the test that is needed for fighting words would be the words that the common man will perceive to be those that are aimed at provoking a fight. There are sections of people that believe that the people should be reluctant to accept any restrictions that are directed towards speech (Heyman, 1996, p. 21). Bibliography Cortese, A. J. P. 2006. Opposing hate speech. Praeger Publishers. Westport, Conn. Demaske, C. 2011. Modern power and free speech. Lexington Books. Lanham, Md. Gelber, K. 2002. Speaking back. J. Benjamins Pub. Co. Amsterdam. Gelber, K. and Stone, A. 2007. Hate speech and freedom of speech in Australia. Federation Press. Sydney. Heyman, S. J. 1996. Hate speech and the constitution. Garland Pub. New York. Mclaughlin, E., Muncie, J. and Hughes, G. 2003. Criminological perspectives. Sage Publications. London. Sadurski, W. 1999. Freedom of speech and its limits. Kluwer Academic Publishers. Dordrecht. Warburton, N. 2009. Free speech. Oxford University Press. Oxford. Wolfson, N. 1997. Hate Speech, Sex Speech, Free Speech. Praeger Publishers Imprint. Portsmouth. Read More