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Overview: The Tension Between Freedom of Expression and the Regulation of Hate Speech

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The Internet, including especially social media, allows for enormous freedom of expression. In ways not imaginable in the pre-Internet era, people are free to express themselves in writing, with images and photography, and through recorded sound and video. Cheap technology and ubiquitous broadband access allow users to broadcast their output to millions of people around the world. And they are able to network with like-minded people and communities.

At the same time the Internet has become essential to communication, education and entertainment, it has become a vehicle for the distribution of hate. The Internet serves as a meeting place for those seeking to conspire against vulnerable communities. Some people misuse their ability to express themselves by attacking minorities and inciting violence in online posts, memes, music and video. They use the Internet to find and conspire with fellow haters. As explained in a study of viral hate:

In the years since the advent of [social media], we have seen a sudden and rapidly-increasing wave of bigotry-spewing videos, hate-oriented affinity groups, racist online commentary, and images encouraging violence against the helpless and minorities – blacks, Asians, Latinos, gays, women, Muslims, Jews – across the Internet and around the world.1

Thus, the tension between freedom of expression and the regulation of hate presents itself over and over again in the Internet era.

Many societies seek to protect freedom of expression and they seek to protect vulnerable people from hate and abuse. The difficult issue for governments is how to balance the right to free expression with the protection from the effects of hate, since both are recognized as fundamental human rights.2

The extent to which free speech is protected in practice varies significantly from nation to nation. Some countries are more aggressive than others in their legal attack on hate speech, where their constitutions permit, because of the increasing harm to society and to individuals caused by hate speech. The efforts to prosecute hate speech have increased significantly with the advent of the global Internet and social media. With hate inciting violence and even inflaming and emboldening armed combatants, governments increasingly are motivated to pass laws that regulate the Internet.

This compendium specifies the details of the differences in hate speech regulation in significant countries around the world.

The most notable example of a country where a constitution restricts regulation of free expression (even to protect individuals from hate) is the United States. The First Amendment to the United States Constitution is recognized as having the broadest protection of free expression among nations. In the US, hate speech only can be regulated if it is intended to incite imminent violence and is likely to do so.

Supreme Court Justice Oliver Wendell Holmes Jr. explained that the Constitution and the First Amendment are not just about protecting “free thought for those who agree with us but freedom for the thought that we hate.3

The First Amendment enshrines the “marketplace of ideas” and conceptually, speech reacting to hate and explaining its deficiencies is expected to win out in the court of public opinion. Thus, in theory, regulation of hate speech per se is not deemed necessary.

The Internet, with the larger spread of hate speech, has called into question the theoretical precepts of the First Amendment. It is difficult, if not impossible, to address every instance of hate speech with rational explanations. Counter-speech is an insufficient antidote to hate. The use of the Internet and social media by those predisposed to attacking minorities has created an especially pernicious problem. Thus, while some scholars are examining the First Amendment anew in light of the Internet, lawmakers are asking social media companies to increase and improve their self-regulation of hate speech, using their legislative power as leverage.4

Outside the US, governments do not consider hate speech to be valuable public discourse, and such content often is banned, subject to criminal prosecution. The modern legal era of hate speech regulation began after World War II when nations that suffered the horrors of the Holocaust undertook to regulate the kind of hate speech that precipitated attacks on minorities culminating in genocide. Hate speech has been subject to some legal regulation for decades prior to the Internet, but controls have increased in response to the Internet. In the EU, countries have legislated regulation of online content, especially targeting Internet companies. The EU Commission has also relied upon Internet companies' self-regulation commitments to achieve progress in the combat against online hate and other harmful content.5

The EU is also on the verge of adjusting the legal principles that have governed liability on the Internet over the last two decades. 2022 is likely to be a turning point in the European region in the search for a new paradigm on the combination of both free speech and the fight against online hateful content.

With regard to the European Court of Human Rights, the limit to the protection of free speech is determined by Article 17 of the Convention, which contains a traditional impediment on the abuse of a right. Although the Court has not always applied Article 17 consistently, it generally tends to invoke it in order to ensure that the protection conferred by Article 10 is not extended to racist, xenophobic or anti-Semitic speech; statements denying, disputing, minimizing or condoning the Holocaust, or (neo-)Nazi ideas. As such, the Court has routinely held cases involving these types of expression to be manifestly unfounded and therefore inadmissible.

  1. Foxman and Wolf, Viral Hate: Containing its Spread on the Internet (2013)
  2. The tension between freedom of expression and freedom from hate (often referred to as the right to human dignity) is well illustrated in the United Nations’ Universal Declaration of Human Rights. Even though the Declaration does not impose any specific legal obligations on countries, it has become highly persuasive and provides a basis for international norms. Articles 1 and 2 of the Declaration provide that all people are born free and are of equal dignity and rights, and shall not be subject to distinctions because of their minority status. Article 19 of the Declaration provides for freedom of expression. The Declaration does not suggest how to resolve conflicts between those articles.
  3. United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting)
  4. While lawmakers are not proposing to change the First Amendment, they are focusing on Section 230 of the Communications Decency Act, 47 USC § 230, which immunizes platforms from liability for the content posted by third parties and for editing content. Numerous lawmakers have made proposals to amend or rescind Section 230 because of the proliferation of online hate.
  5. In 2016, the European Commission and four major social media platforms announced a Code of Conduct on countering illegal online hate speech. It included a series of commitments by Facebook, Twitter, YouTube and Microsoft to combat the spread of hate-filled content in Europe. The companies committed in particular to review the majority of valid notifications of illegal hate speech in less than twenty-four hours and to blocking access to such content according to national laws.