This is a factual question. So please save you opinions for GD and other places .
What rights do people who espouse hate have in Europe (and other modern industrial countries, Canada and Australia, e.g.)?
First some background, as to what inspired this question. As a child, I assumed the U.S. definition of free speech was universal. The U.S. Supreme Court has ruled time and time again, that a state has no business regulating the content of speech. So it really isn’t about hate speech (which is protected for this reason). However, the Court has ruled the way you present your speech can be prohibited. So sedition and obscenity are generally illegal, for this reason. Then around high school FWIW, I discovered some places like Europe actually have much less in the way of rights than we do in the U.S. For example, in Germany, making the heil Hitler salute could land you 3 years in prison, even though it is ironically considered protected speech over here.
Anyways, I will cut to the chase. I somewhat more recently heard news, from Germany (so my question will surround that country), that every year, neo-Nazis rally in Germany. They are obviously constrained somewhat in what they can say. But they do rally. Sorry no cite (for now).
Now I am confused. What rights then do they have? I know the right to freedom of thought is theoretically at least absolute. But what beyond that point? I trust you can see my confusion. Appropriate articles would be helpful too, of course .
Thank you in advance for your helpful (and civil) replies .
Germany and Austria are special cases, of course, because of their history. So they are much more absolutely restrictive about Holocaust denial and the use of Nazi imagery and the like.
Germany has strict anti-nazi laws, but they don’t outlaw thought-crimes. You can be a neo-nazi and you can March in support of going back to the ideals of Hitler, you just can’t do it while wearing swastikas and shouting “Death to the undesirable!” So instead you pick some other symbol that you and your nazi-buddies agree will do just fine, and you shout something that gets the message across without violating the letter of the anti-nazi laws.
The wikipedia article on this seems quite good. I found it by googling German anti-nazi laws. Among other things it has a picture of neo-nazis marching with a 1933 flag that was actually outlawed by the Nazis, but if enough people use something and make it obvious it’s in place of the swastika flag it will have an effect much like the swastika flag!
As far as I know the relevant laws in Europe are all about banning certain expressions of thought, but the exact limits are not simple to summarize. The laws, other than the German one, are rarely specific, so exactly learning exactly where the line exists depends on examining case law, which is quite a job even for one country, let alone all European countries with hate speech laws.
I was surprised to see that Australia’s legal code (Section 18C of the Racial Discrimination Act of 1975) which proscribes “hate speech” and related behavior appears to have considerable loopholes, namely:
"Section 18D of the Act provides that section 18C does not unlawful anything said or done reasonably and in good faith:
in the performance, exhibition or distribution of an artistic work; or
in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
in making or publishing:
a fair and accurate report of any event or matter of public interest; or
a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment."
You’d think that a large semi-truck could be driven through that last loophole in particular.
By the way, opening up a thread to question the rights of “hatemongers” and then demanding no one express an opinion seems…optimistic.
Not in the European Convention on Human Rights (Article 10), which is the overarching general statement of rights applicable to the 47 member states of the Council of Europe (though more “allegedly” in some than in others):
1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary
Worth noting a caveat, which is that the EU member nations have a largely equivalent set of legislation which has to conform to the EU declaration on Human Rights, so in effect there are far fewer legal codes than the number of EU nations.
Formed in 1949, the Council of Europe is completely separate from the European Union and much larger, with 47 members compared to the EU’s 28. The UK became a Council member 24 years before it joined the EU. The UK’s membership of the Council would be unaffected if it left the EU."
The EU has a Charter of Fundamental Rights as well - the aim being to codify, update and operationalise within its own legal system the application of the more general and abstract provisions of the Council of Europe Convention.
Not so, since a loit of countries have bills of rights of one form or another in their domestic law as well as being party to and bound by the European Convention on Human Rights and the EU Charter of Fundamental Rights. The domestic codes generally predate the transnational one, and people who feel their rights are being infringed can seek protection or remedies under any applicable code.
I don’t think this is right - or, at least, it requires more unpacking. Whether speech is seditious or obscene or defamatory or whatever depends on its content, it seems to me. The distinction between “Jim_B is a scholar and a gentleman” and “Jim_B is a fraud, a thief and a liar” is very much one of content, not presentation.
The truth is that the US - like every other country - accepts a whole slew of restraints on freedom of speech - not just sedition and obscenity but, as alread mentioned, copyright. And privacy. Commercial confidentiality. Medical confidentiality. Contempt of court laws. Copyright. And many more besides.
Once you have a concept of human rights that recognises that there is more than one right, then you have inevitable tensions and conflicts between the rights that are recognised. Does my right to property in the novel that I write trump your right to free speech, and so prevent you publishing the novel without my agreement. Surely you posting my medical records on the web without my consent would be a protected exercise of free speech? If not, why not? Etc, etc.
The ways in which particular societies balance the right to free speech with other rights will vary, and will reflect the different values, history, experience, etc of those societies - German and Austrian restrictions on particular forms of Nazi speech are an obvious case in point.
But this works both ways. Germans look with some puzzlement at, e.g., recent widespread social media bans on Trump in the US. This isn’t an act of state, and so doesn’t fall foul of the US articulation of the right of free speech which is very much focussed on what the government may not do rather than on what the individual may do. But it nevertheless largely prevents Trump from communicating his messages to the wider public; it’s a a very real constraint on his right to free expression.
No great loss, you may think, but that’s not the point. We can see this as the state effectively contracting out to private, monied interests the monitoring and restraint of public speech. Is this a good thing? In particular, is it a sound basis for defending and vindicating basic human rights?
There are European codes of rights which, instead of conceiving of free speech as a restraint on the government, express it as an affirmative right of the individual. This would perhaps provide a basis on which Trump could challenge a privately-imposed ban, because private individuals are just as obliged to respect my human rights as the government is. Those imposing the ban would then have to show that it is justified by some consideration which the relevant bill of rights recognises as justifying a limitation on free expression. In this respect some of the European codes may provide a stronger defence of the right of free speech than the US Bill of Rights does.
Interesting point still to be tested perhaps. But then it comes down to Twitter’s (or any other platform’s) right to protect its own interests, such as brand image and similar considerations: and to what extent is any given medium/platform essential to free expression/communication? It someone paints a slogan on your garden wall, are you forbidden from painting over it because of their freedom of speech? Is a newspaper required to print all the letters people send in for publication?
(My own view is that freedom of speech is not an entitlement to use anyone else’s megaphone).
Sure. And that’s a view informed, perhaps, by the US perspective which understands this as a restraint on what the government can do.
But compare something like racial discrimination. It’s obvious that a law which simply prevented the government from discriminating on the grounds of race, but left individuals and companies free to make racially-based discriminations, would do little to protect people from racial discrimination, so we have laws of generall application that require anyone dealing with the public not to discriminate on racial grounds.
We could apply a similar approach to the protection of freedom of speech and say that, e.g., if you’re in the business of publishing/broadcasting/relaying online content, you can’t ban somebody just because you don’t like him, or don’t like what he has to say; you have to be able to justify the ban with an appeal to rights or interests which society recognises as warranting restriction of the right of free speech. The European Convention on Human Rights, already quoted, contains both an assertion of free speech as right that can be asserted not just against the government but against the world, and a nod in the direction of identifying rights or interests which might justify restrictions;. The US Constitution presents the right of free speech as something that can be asserted only against the government, and says nothing about explicit what might justify restrictions on free speech. But the courts have done the needful so there are, in fact, many, many, perfectly constitional restrictions on free speech in the US.
So I don’t think it’s correct to suggest, as the OP does, that the US provide better protection of free speech than European countries tend to. Different countries articulate the right of free speech in different ways, and they also go about protecting and vindicating that right in different ways. The result might conceivably be that in some respects free speech rights may be better protected in some European countries than in the US; in other respects, worse.
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