Page 27 - Delaware Lawyer - Fall 2019

1791, the Supreme Court relies on the R.A.V. v. St. Paul 3 paradigm of content and viewpoint neutrality. It is the para- digm widely hailed in the United States. And yet, the R.A.V. opinion leaves much to be desired in its explanatory turbidity. The R.A.V. majority not only put a thumb on the judicial scale in favor of the First Amendment, but did so to the virtual ef- facement of how free speech is interlinked with other facets of constitutional democ- racy, including privacy and dignity inter- ests.4 Justice Antonin Scalia’s libertarian opinion renders free speech doctrine vir- tually impervious to government con- cerns for social, political, economic and substantive equality. Neither does Scalia’s opinion reflect on the violent racist his- tory associated with symbols linked to su- premacist organizations.
Weighing the Interests of Speakers and Audiences
Unlike European courts, the Supreme Court of the United States refuses to weigh interests on both sides, the speak- er’s and the audience’s. American First Amendment law is thus characterized by rigid formalism and an antipathy to any regulation of content — rendering un- constitutional restrictions on hate speech. In contrast, around the globe, democra- cies recognize that the social harms flow- ing from hate speech are consistently ad- judicated through balancing procedures.
A recent opinion by Justice Stephen Breyer, however, suggested that American law ought to adopt an analysis much akin to that often used in Europe. “Propor- tionality analysis” allows fair resolution using categorical “rules of thumb,” as Justice Breyer suggested, not “outcome- determinative” rules.5 In Justice Breyer’s view, “proportionality analysis” should be used to determine whether the regulation at issue “works speech related harm that is out of proportion to its justifications.” 6
I agree with Justice Breyer. From a theoretical perspective, what is at stake is continued American formalism pitted against progressive proportionality review in countries like Great Britain, Austria, Spain, Germany, Canada, France, Israel, the Netherlands, Finland, Sweden and Norway. In these countries, content, form, and the context of the case or con-
American First Amendment law is characterized by rigid formalism and an antipathy to any regulation of content.
troversy as described in the record, are all deemed relevant to judicial interpretation. The European Court of Human Rights consistently finds that expressions of “racism, xenophobia, anti-Semitism, aggressive nationalism and discrimina- tion against minorities and immigrants” offend the European Convention on Hu- man Rights. The European Court of Hu- man Rights distinguishes “between gen- uine and serious incitement to extremism and the right of individuals (including journalists and politicians) to express their views freely and to ‘offend, shock or
disturb’ others.” 7
Hate Speech Law in Germany and Austria
European laws tend in the same di- rection. The Germany Basic Law, for ex- ample, guarantees the right freely to ex- press and disseminate. But in a separate provision, that constitutional document recognizes that anyone who abuses free- dom of expression to “undermine the free democratic basic order, shall forfeit these basic rights.” Section 131 of the country’s criminal code prohibits distribution, dis- play and supply of any: “writings...which describe cruel or otherwise inhuman acts of violence against human beings in a manner which expresses a glorification or rendering harmless of such acts of violence or which represents the cruel or inhuman aspects of the event in a manner which injures human dignity.” German courts have found hate speech legislation to be consistent with the nation’s commitment to free speech. The German Federal Con- stitutional Court (Bundesverfassungsgeri-
cht), in BverG v. Rieger, upheld a criminal conviction for expressing support for the Nazis.8
Germany also recognizes the danger of hate speech disseminated over the in- ternet. In 2001, the German Federal Court of Justice ruled that the country’s law against Holocaust denial applied to Gerald Fredrick Töben, who ran a web- site from Australia that disseminated Ho- locaust denial into Germany.9 The latest development is legislative. The Netzwerk- durchsetzungsgesetz, or Network Enforce- ment Law, requires social media compa- nies to remove alleged hate speech within 24 hours of notification.
The Austrian criminal code bans the National Socialist German Workers’ Party, a Nazi party. Treating hate speech as infringing on personal autonomy and dignity, Austria criminalizes the incite- ment of hostilities against religious, ra- cial, ethnic, national groups and other groups, because it “jeopardize[s] the public order.” Slandering these groups attacks “their human dignity.” 10 Stirring up hatred against or verbally harassing statutorily identified groups is subject to up to two years in prison. Printing and broadcasting such content is an aggra- vated offense. Intent to incite another to carry out the proscribed act is criminally actionable. The crime can be committed by film, cartoons or pantomime; words are not the sole means to commit the of- fense.11 As other American scholars have correctly recognized, countries like Aus- tria that have anti-hate speech laws “wish to deter the violence and fighting they be- lieve [hate speech] encourages.” 12
Hate Speech Law in Great Britain
Great Britain has long recognized a connection between destructive propa- ganda that makes “reference to colour, race, nationality (including citizenship) or ethnic or national origins” and the spread of racist and ethnocentric doctrines that undermine representative democracy. Its earliest law against the breach of the peace, the Public Order Act of 1936, was enacted in response to fascist rallies that became increasingly volatile and anti-Se- mitic. Then in 1965, the British Race Re- lations Act prohibited persons from inten- tionally publishing written materials or
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