Regulation of Speech in Multicultural Societies

Marcel Maussen, Ralph Grillo

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781317507819
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This book focuses on the way in which public debate and legal practice intersect when it comes to the value of free speech and the need to regulate "offensive", "blasphemous" or "hate" speech, especially, though not exclusively where such speech is thought to be offensive to members of ethnic and religious minorities.

The themes addressed are of great significance for contemporary societies in many parts of the world, including Europe and North America, and although the volume focuses principally on the European context, it also addresses the theme on an international level. Contributions look at the transnational intertextuality of the debate, as well as comparing approaches to regulation in different countries (notably between the European Court of Human Rights and the United States Supreme Court). This book was originally published as a special issue of the Journal of Ethnic and Migration Studies.

Introduction

Regulation of Speech in Multicultural Societies

Marcel Maussen and Ralph Grillo

What to do about speech which vilifies or defames members of minorities on the grounds of their ethnic or religious identity or their sexuality? How to respond to such speech, which may directly or indirectly cause harm, while taking into account the principle of free speech, has been much debated in contemporary Europe, not least with respect to speech about, or by, Muslims. This introduction to the Special Issue on the ‘Regulation of Speech in Multicultural Societies’ argues that a sociopolitical approach, and sensitivity to power configurations, is necessary to complement the legal-normative perspective which predominates the ‘hate speech’ literature. Such an approach takes into account the national and international sociopolitical contexts which interactively shape and are shaped by debates about hate speech and its regulation. The politics and politicisation of speech and its regulation (both within and aside from state law) may thus offer a way of understanding specific forms of contestation and provide a framework for comparative analysis.

1. Introduction

A recurrent challenge for present-day democratic, plural societies is the negotiation of the boundaries of legitimate speech and the subsequent monitoring and protecting of those boundaries. In the case of Europe, legal or other forms of regulation have been debated in connection with the sensitivities of ethnic and religious minorities (especially but not exclusively Muslim), the rise of populist parties and their leaders’ anti-immigrant rhetoric, offensive speech in plays, books and films, on the basis of gender, sexuality or disability, and in association with violence and terrorism. This Special Issue¹ of the Journal of Ethnic and Migration Studies proposes a sociopolitical analysis of processes of contestation around regulation which complements existing legal and normative perspectives.

We are using ‘speech’ as shorthand for a wide range of forms of expressions (oral or written) which may include pictorial and other kinds of representation, including symbols and signs, for example the ‘Heil Hitler!’ salute, or dress codes that express political sympathies. Such speech occurs in all kinds of settings and contexts: schools, newspapers, workplaces, the Internet or the street, and there is a wide variety of institutions with varying capacity to regulate speech, including, but not limited to, the state and the law.

Our particular focus is the regulation of speech which might be seen as ‘harmful’ and which is expressed in ‘public forums’ and conveying messages on ‘public matters’ (Bleich 2011b, 76), though we recognise that the boundaries between what is public and non-public are fluid, and there are different conceptions of what constitutes ‘harm’. We are not concerned with pornography, private libel or defamation, or with commercial speech that is deceitful or misleading, but with what has come to be called ‘hate speech’. Commonly, three essential features are seen as defining such speech: it is directed against a specified or easily identifiable individual or, more usually, group of individuals based on aspects of their (core, non-voluntary) identity; it stigmatises the target group by implicitly or explicitly ascribing qualities widely regarded as highly undesirable; and because of its negative qualities, the target group is viewed as an unwelcome presence and a legitimate object of hostility (adapted from Parekh 2012, 40–41). Hate speech in various ways demeans, denigrates, defames, essentialises or otherwise ‘harms’, an individual or group, typically one which constitutes a ‘minority’. It also entails some element of ‘incitement’, by inciting or legitimising violence, discrimination or hostility vis-à-vis (members of) a group.

Concerning appropriate responses to hate speech, one of the major challenges in democratic societies is to find ways of addressing the problem while maintaining the principle of free speech (Herz and Molnar 2012b, 2). With regard to public speech, the main thrust of this principle is that everyone should have the freedom to express ideas, viewpoints or sentiments on society, social and political processes, groups and social relations and historical events. As the European Court of Human Rights (ECtHR) affirmed in a crucial ruling on offensive speech, the freedom of expression constitutes one of the essential foundations of a democratic society and it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also those that offend, shock or disturb the state or any sector of the population.² The purpose of this Special Issue is not, however, to revisit that normative debate, but rather to analyse empirically and theoretically how multicultural societies in Europe are struggling with the challenge of addressing the balance between controlling hate speech and protecting freedom of expression.

The paper is organised as follows. Section 2 reviews the hate speech literature and argues that the pervasive normative-legal approach needs to be complemented by one which pays attention to the politicisation of free speech and its limits. Sections 3 and 4 develop this theme, examining the sociopolitical context of the evolving debate on hate speech and its regulation, principally in Western Europe, and exploring the politics of regulation. Section 5 seeks to take the study of the regulation of speech beyond the legal arena. Section 6 offers a brief conclusion and summarises the papers included in the Special Issue.

2. Studying Hate Speech: From a Normative-legal to a Sociopolitical Perspective

The regulation of hate speech has generated a substantial academic debate encompassing different national and disciplinary traditions and addressing both contemporary concerns and their intellectual and political antecedents. Besides important monographs by, among others, Jeremy Waldron (2012, see Bangstad 2014) or Erik Bleich (2011b) writing in defence of hate speech legislation, or Jytte Klausen (2009) on the Danish Cartoons, there have been numerous edited collections contributing to the field as a whole or significant parts of it.³ Without attempting a detailed review, the following indicates what we feel to be some of that literature’s limitations.

(1) There is much normative discussion on constitutional and legal limits to public speech, and of the extent to which such limits are justifiable, or not, in terms of the principles of liberal democracy. One important ‘master-frame’ that structures the debate is the opposition between the outright defence of free speech, for which US First Amendment ‘free speech absolutism’ is taken as exemplary (e.g. in Molnar and Strossen 2012), and the view that there are grounds for restrictions, with a ‘European model’ as its primary reference point.⁴

(2) The literature is often repetitive, on both sides (pro and anti-regulation) going over the same or similar ground, making the same or similar points, using the same examples. There is much discussion, for the USA, of the legal decisions in Beauharnais v Illinois, New York Times v Sullivan, Brandenburg v Ohio, Chaplinsky v New Hampshire, or Snyder v Phelps; in the UK Hammond and Norwood frequently recur, and in relation to the ECtHR Jersild v Denmark; for France (and Germany) the criminalisation of Holocaust denial is at the forefront of debate. Iconic legislation (e.g. on seditious libel or blasphemy) is constantly revisited as are certain paradigmatic events: the Rushdie Affair, the Danish Cartoons, the Rwanda genocide and so on. The focus on exemplary cases and judgements is far from unimportant, but because scholars are constantly circling around the same arguments over principles and instances, contributions are rarely fresh and original.

(3) Within this framework of constitutional and legal discussion, the politics of regulation (including its implementation and effects) are only lightly addressed, and many accounts are content to describe historical evolution in a particular jurisdiction with limited attention to what happens outside the constitution and the courts, and in contexts such as education or employment; it sometimes seems as if state regulation via ‘criminalisation’ is the only option in addressing hate speech. Other studies, for example those concerned with racism and Islamophobia, indeed have a political dimension, but while they have strong (perhaps implicit) normative implications, they are often unreflexive about challenges involved in balancing different liberal and democratic principles.

(4) Those who oppose legislation on the grounds of freedom of speech frequently do little more than repeat the refrain ‘more speech’. Those in favour of ‘self-restraint’ and ‘self-regulation’ give little guidance on how a reasonable balance between freedom of speech and preventing harm can be struck, and in what settings (see Section 5, below).

(5) Comparisons of different regimes of speech governance are poorly developed or at a general level, with particular emphasis on the difference between US and ‘European’ theory and practice. The US First Amendment is frequently seen as the benchmark, providing a test by which other regimes are to be judged, with only limited attention to the factors which influence different national traditions.

While recognising the significance of the many issues raised in hate speech literature, we believe that the discussion of how liberal democratic states protect free expression and oppose hate speech should be grounded in an approach which treats hate speech and its regulation as embedded in political, social and cultural processes. Briefly, we point to five aspects of such an approach, some of which are developed in the contributions to this Special Issue.

(1) Hate speech (the very existence of the category, how it is interpreted and operationalised) is best conceptualised as a social, cultural and political construct, its meaning dependent on the context in which it is deployed, and from whose perspective. This involves not only the legal discourse in which it is situated but also the claims of those who are victims (or perpetrators), and those who seek to problematise certain forms of speech. This is part of what we call the politics of regulation and its politicisation, in which the pros and cons of addressing hate speech are debated. In legal practice, a precise definition of ‘hate speech’ may be preferable (see Bader 2014) whereas in other contexts more inclusive notions can be used.

(2) Speech should be analysed with sensitivity to power differentials, a perspective which fundamentally distances itself from a naive version of speech as a ‘free market place of ideas’. We need to acknowledge that public and political speech is not (exclusively or primarily) about truth seeking, and that in our societies, there are many ‘public forums’ each shaped by configurations of power that structure opportunities for access (of people, groups, viewpoints, issues, styles) and regulation, and that social inequalities affect the way public speech develops.

(3) Interpreting the balancing of free speech/hate speech entails analysing the wider (national) cultural/legal contexts and traditions, the social and political contexts that shape the debate, and the situations and settings in which the balancing and regulation takes place. Comparisons need to avoid re-producing stereotypical images of a country’s approach, for example, citing the rulings of the US Supreme Court in favour of absolute free speech and ignoring other verdicts (see critically Walker 1994and Bleich 2014), or assuming that laws punishing Holocaust denial signify the end of democracy without taking into account how this type of legislation has been implemented. An empirical and contextual analysis can assist in identifying why some forms of balancing seem plausible in specific situations and whether or not they merit serious (normative) consideration.

(4) One important, albeit difficult, task, is to analyse the role that legislation actually plays and the effects it may/may not have, while at the same time deconstructing how possible effects are represented by advocates and opponents of hate speech laws (see Van Spanje and de Vreese 2011, on the impact of the prosecution of Geert Wilders for hate speech). Social scientists may also contribute to the debate, and to some extent reclaim it from legal scholars, by focusing more on studying regulation (and its difficulties) outside of the legal arena.

(5) Legal regulation by states and supranational institutions, and public and political debate on hate speech, occur in an increasingly globalised context. This requires taking into account intertextual and transnational ties in the forming of national public and political agendas (as well as with regard to the operation of the law);

We develop some of these points below.

3. The Move to Regulation

Historically, a great number of legal restrictions on public speech have existed, which were commonly defended as necessary for maintaining public order, protecting public welfare and morals (e.g. banning blasphemy, lèse majesté, or sedition), or simply outlawing critique of the powers-that-be, or speech deemed to violate state interests. Whereas some restrictions on speech are retrospectively seen as illegitimate in liberal and democratic societies (e.g. suppression of socialist and communist views in the United States in the twentieth century), there is now debate on outlawing some forms of Islamist speech. Also ‘blasphemy’ still exists as a legal concept, for example in Denmark, and at least for the present in the Netherlands, even though it is no longer used to criminalise speech (Larsen 2014; Van Noorloos 2014).

A relatively new concern arose in the early-mid twentieth century, around restrictions thought necessary to address racist and anti-Semitic speech. In Europe, prior to the Second World War, such initiatives were at best ‘sporadic and poorly enforced’ (Bleich 2011b, 19), and primarily concerned with protecting democracy against its internal enemies, namely fascist and Nazi movements. The idea that there was a causal relationship between racist and anti-Semitic acts and racist speech, that the latter spread and legitimated the former, was carried over into the post-war era in legislation in Germany and Austria (Bleich 2011b, 19–20). In the early twentieth century, some states in the US also had provisions against racist and anti-Semitic hate speech, usually because this type of speech could be categorised as entailing ‘fighting...

Table of contents

• Cover
• Half Title
• Series
• Title Page
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• 1. Introduction Regulation of Speech in Multicultural Societies
• 2. Towards the Blasphemous Self: Constructing Societal Identity in Danish Debates on the Blasphemy Provision in the Twentieth and Twenty-first Centuries
• 3. The Global Battle over Religious Expression: Sweden’s Åke Green Case in Local and Transnational Perspective
• 4. Hate Speech and Dialogue in Norway: Muslims ‘Speak Back’
• 5. The Politicisation of Hate Speech Bans in the Twenty-first-century Netherlands: Law in a Changing Context
• 6. Fighting Words: What’s Wrong with Freedom of Expression?
• 7. Freedom of Expression versus Racist Hate Speech: Explaining Differences Between High Court Regulations in the USA and Europe
• 8. Denial of Genocide and Crimes against Humanity in the Jurisprudence of Human Rights Monitoring Bodies
• 9. Free Speech or Non-discrimination as Trump? Reflections on Contextualised Reasonable Balancing and Its Limits
• Index