Page 28 - Delaware Lawyer - Fall 2019

FEATURE
giving public speeches that were threat- ening, abusive or insulting and likely to stir up racial hatred.
With Great Britain, as with Germany, intent is only one factor for the court to evaluate in determining whether speech incites violence and other illegal activity against identifiable groups.13 The current law against stirring up hatred against any racial group in Great Britain (Part III, § 18 of the Public Order Act of 1986) uses a test of whether “racial hatred is likely to be stirred up” rather than the “intends to stir up racial hatred” language. The language used in the Public Order Act of 1986 like- wise criminalizes the use of threatening, abusive or insulting language or behavior to stir up hatred based on color, race, na- tionality (including citizenship) or ethnic or national origins. Likewise, § 19 pro- hibits distributing written material that stirs racial hatred, having regard for the circumstances, and § 21 prohibits distri- bution of visual or audio material that is intended to stir racial hatred. In R v. Umran Javed and Others, speakers were convicted of threats, abusive and insult- ing words intent on stirring up hatred in violation of § 18 during a public gather- ing convened to condemn cartoons, origi- nally published in Denmark, mocking the Prophet Muhammed. The event took place shortly after the London bomb- ings of July 2005, when tensions over terrorism were high. Statements at the event urged participants to commit acts of murder. The appellate court’s reason- ing considered the circumstances under which the statements were made and the likelihood they would stir others to com- mit further offences.14 In addition to tak- ing into account the actual statements and conditions in which they were made, Brit- ish courts further review the duration of the events leading up to an arrest and the extent to which the actionable statement was repeated to one or more audiences.15
The Racial and Religious Hatred Act of 2006 further amended the Public Or- der Act of 1986 to create a criminal cause of action for stirring hatred against per- sons on religious grounds.16 The Public Order Act also prohibits intentionally stirring hated against persons based on sexual orientation.17 Even possession of
American courts would provide greater transparency as to why hate speech has such low value if they were to adopt some of the proportionality methodologies of European countries.
inflammatory material is a punishable of- fense when it involves “threatening, abu- sive or insulting” language. As with other countries reviewed here, Great Britain balances countervailing government con- cerns, as Justice Breyer’s proportionality formula counsels.
Hate Speech Law in Scandinavia
Scandinavian democracies likewise link hateful propaganda to extremist con- duct. They find a constitutional guaran- tee of free speech to be consistent with the enforcement of hate speech regula- tions. Article 266b of the Danish Penal Code criminalizes racist statements, mak- ing it illegal to publically utter “with the intention of wider dissemination” of a statement or to impart to others “infor- mation by which a group of people are threatened, insulted or degraded on ac- count of their race, colour, national or ethnic origin, religion or sexual inclina- tion.” Violators of 266b can be fined or imprisoned.18 Finland is another country that honors free expression,19 but its law nevertheless criminalizes the use of racial, ethnic and religious threats, slanders and insults.20 Norway’s penal code contains a provision, Article 135a, which crimi- nalizes discriminatory or hateful expres- sions uttered to the public “willfully or through gross negligence.” 21 Article 135a covers racial, xenophobic, ethnocentric and homophobic propaganda which is di-
rected at individuals.
The Swedish Constitution explicitly
guarantees all citizens the rights “pub- licly to express [their] thoughts, opinions and sentiments, and in general to com- municate information on any subject whatsoever on sound radio, television and certain like transmissions, films, video recordings, sound recordings and other technical recordings.” A provision of the Swedish Penal Code, nevertheless, pun- ishes anyone for spreading statements or communications that threaten or express “contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin or religious belief.” A 2003 amendment to the law also criminalizes incitement against homosexuals.22 Chapter 16, Sec- tion 8 of the Penal Code (Brottsbalken, SFS 1962:700) provides that “a person who, in a disseminated statement or com- munication, threatens or expresses con- tempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin or reli- gious belief shall be sentenced for agita- tion against a national or ethnic group to imprisonment for at most two years or, if the crime is petty, to a fine.” 23 The gov- ernment of Sweden considers the problem not simply the symbols of hate, which are prohibited, but the ideologies of groups that use them to spread violence, intimi- dation, harassment and threats.24 Sweden in 2016 adopted a national plan to combat racism. As part of Sweden’s plan to com- bat antisemitism, it will host a conference in 2020 in memory of the Holocaust.25
These examples suffice to demonstrate how democracies around the world have combated hate speech. While the out- come in Gersh v. Anglin was admirable, American courts would provide greater transparency as to why hate speech has such low value if they were to adopt some of the proportionality methodologies of European countries committed both to free speech and determined to end dis- crimination. Which of these competing values should receive greater weight ought to be decided case-by-case, using propor- tionality analysis to balance the factual, substantive and procedural circumstances of each case.
26 DELAWARE LAWYER FALL 2019