In many European countries, including Germany, it is illegal to publicly use hate speech whereas within the United States it is perfectly legal to publicly preach anti-Semitic and racist opinions because of first amendment protections. However, some within the United States want to place legal restrictions on hate speech in order to protect vulnerable ethnic and religious minorities. We interviewed Professor Roy Gutterman of Syracuse University, an expert on free speech issues to better understand the nature of hate speech and why it is drastically different within the United States.
Professor Gutterman is an Associate professor and Director of the Tully Center for Free Speech at the Newhouse School at Syracuse University, a licensed lawyer as well as a former journalist.
Q: What is free speech?
A: Free speech is pretty much a human right to express yourself and say things that you want to say. Free press is the right to publish without fear of censorship or sanction by either the government or private entities.
Q: Where does free speech come from?
A: In the U.S. free speech comes from the First Amendment to the Constitution. In a global sense, free speech and free press are natural rights, human rights, and basic rights that every human being should be able to exhibit and there has been scholarship on this going back hundreds of years.
Q: What is hate speech and what is its relationship to free speech.
A: Hate speech is a really narrow category of speech that is based solely on negative opinions of other groups of people that is really based upon a stereotype, a basic hatred of certain types of people. It is a narrow category of speech. In some countries different versions of hate speech are illegal; in the U.S. hate speech is not illegal.
Q: Are there limits on free speech or free press? If so, what are those limits and why do these limits exist within the United States?
A: There are limits to free speech with regard to civil remedies for instance you can’t say something false about someone that harms their reputation because that becomes a tort of defamation. If you say something or publish something that is false and harms someone’s reputation there are civil remedies; You can be sued and end up having to pay money or financial restitution but the point is it has to be false. Generally negative things that are true about people are not actionable.
Q: Why is it so that you cannot say something false that harms the reputation of an individual but you can about the reputation of a group?
A: There are differences between defaming an individual and a group. There is a concept, at least in American Law and again I can only really speak about American law, where you cannot defame a group. You can’t say that “all purple people are criminals” however, if you say something false about an individual there can be some liability there. The nuance here is that the tort of defamation is a very personal tort since you are protecting an individual's personal reputation. Whereas if you were to lay out the prima fascia elements, the basic components required in a defamation case is that it has to be false, published, about the individual, and cause harm to their reputation. That third prong of about, it has to be about a very specific person. There is a lot of litigation about vague statements that may be about someone for instance if I said, “There is a Syracuse professor that is stealing money.” Well, would I have standing to sue and would I have legitimate grounds to sue for something like that if it turned out to be false? There are probably about two-thousand University professors, so how can I say that statement is solely about me without extra identifiable information. Similarly, the entire group of Syracuse University professors would not be able to sue either because it’s just too large of a group.
Q: Interesting, I would like to shift gears. This past October in France, the hash tag "a good Jew" was trending on twitter and featured tweets saying “a good Jew is a dead Jew #goodjew” Tweets of this nature were anti-Semitic and often threatening in nature. Additionally, it was the third largest trending topic on twitter at the time. Following this incident the Jewish Student Union in France took twitter to court and ultimately the French court demanded that Twitter release the names of those tweeters who spread anti-Semitic vitriol. Could such a thing happen in the U.S. with such widespread hate? What is your opinion of such legal actions on hate speech?
A: That is a two prong question. The first would be, could you identify an anonymous speaker online since that raises a whole secondary issue of the free speech right to remain anonymous in cyberspace. It’s a huge issue even in the states and there have been cases where anonymous speakers have been unmasked online but that has been in the context of legitimate litigation. There’s a whole series of steps that are available to plaintiffs to find out who is publishing under false names on the internet and you would need to get a court order by a judge to get that revealed. But you would need a court order to get that revealed, so that’s a whole area of litigation and that has happened in a number of defamation cases. The other issue here is the hateful element of this, and the internet has been a real haven for hate speech globally and I don’t think that you would be able to go to court and get the identity of a hate monger revealed in the United States. Again, it’s not defamatory to post hateful things about religious groups or ethnic minorities; the line here would be whether this speech is actually inciting some form of action. Is this hateful speech inciting people to go commit acts of violence? There is a huge body of American law on incitement and even that is a difficult thing to prove, especially with the internet because it’s so remote that the action might be so far removed from any sort of call to arms or any sort of invocation of hateful content. The short answer to your question is it would be pretty difficult in the U.S. to unmask the identity of a hate speaker online absent some form of illegal conduct, an outright attack or any sort of language that is really targeted to encouraging or inciting violence. Consequently, it would be very difficult to unmask somebody like that.
Q: Are companies based out of the U.S. like Facebook or Yahoo required to comply with other nation’s attempts to stifle hate speech as was the case with Twitter handing over information to the French courts? How do American companies have to respond to non-American laws on free speech? What does U.S. law say about these different conceptions of hate speech and the response to it?
A: These companies whose websites allow third party users to upload or generate content are protected under federal law. There is a section of federal law of the Communications Decency Act called section 230. Section 230 of the CDA provides immunity for interactive computer services that allow third parties to generate content. That means they have liability from things like tort defamation and other things of that nature. Facebook wouldn’t necessarily be on the hook for anything in the United States. But in order to unmask the identity of a user or to get any sort of data on who’s posting stuff a plaintiff would have to subpoena the website then get a court to compel them to reveal the identity, and that has happened as I said in defamation cases. These interactive computer services operate with a lot of immunity in the U.S. however with the Internet you are technically subject to the laws of any country where your service is accessed. So in a real strict sense Facebook could be subject to the laws of France, Germany, Iran, or any place for that matter and then they have to act accordingly.
Q: Jeremy Waldron, author of the recent book “The Harm in Hate Speech” makes the case that in the U.S. Hate speech should be regulated. He bases his legal argument on the 1951 case Beauharnais v. Illinois and draws a principle of group libel from this case. Additionally, Waldron contends that since hate speech is already prohibited by most large workplaces, campuses, broadcasters, America already has a highly regulated marketplace of ideas and consequently it is not an unreasonable leap to restrict hate speech further in the interest of mitigating the harm of the vulnerable. What do you think of these arguments put forth by Jeremy Waldron?
A: Speech in the workplace is not regulated by the government since those are private employers. Campus speech at a private university, that’s the real battleground right now for free speech. Private universities are private institutions, public universities however are extensions of the government. I haven’t read this guy’s book, I don’t know who he is but I will have to intellectually disagree with him on that. I am not quite sure I want the government telling me what is hateful speech; do I endorse the Ku Klux Klan or the Nazis? No, I hate those people as much as everybody else. Do I think they should be legislatively silenced? No, because that’s a slippery slope and it runs counter to the marketplace of ideas. If we are going to allow the government to silence even fringe political groups-because let’s say we legislate the ideas expounded by Jeremy Waldron, we end up creating a new body of law. Will this make the Nazis go away? Will this make the Klan go away? Is that going to suddenly make the Westboro Baptist group embrace different groups? No, it’s just going to put them underground and it’s not going to bring everybody together just because we have criminalized certain types of speech.
Q: Why do you think that such speech will just go underground and not be effectively mitigated by hate speech legislation?
A: I am free speech advocate, I believe in the marketplace of ideas. I have covered a Ku Klux Klan rally, I have covered Nazis and other hate groups and to quote Justice Oliver Wendell Holmes “The best test for truth is competition of these ideas in the marketplace of ideas” We live in a pretty civil society in the United States where we can have a debate on pretty hot button issues like race, politics, religion, homosexuality, drug use or whatever the issue is we can have a discussion about it. We are pretty fortunate that we can have these discussions and people pretty much get along in the states. Obviously there have been rifts in history but we live in a pretty diverse society and all in all people sort of get along. There are examples of violence here and there but I don’t think legislating taste or political viewpoints are effective. It is not democratic and it leads to too much wiggle room because who’s to say what is going to be illegal today or tomorrow. It’s just too difficult to legislate and it is anti-democratic in some ways.
Q: Are you suggesting that hate speech restriction will lead to other speech restrictions?
A: Simply creating a new area of speech that falls outside the scope of the first amendment is troubling and the Supreme Court is really reluctant to create new categories of speech that fall outside the first amendment. If you look at some of the Supreme Court cases from the last five years we had the Westboro Baptist Church up at the Supreme Court and they were granted first amendment rights to protest at military funerals. We had laws regulating violent video games that were struck down because the Court did not want to create a new category of speech outside the first amendment. Five years ago we had an attempt to create a new category of illegal speech involving dog fight videos, which showed animals being killed and the Supreme Court refused to create a new category there. Even if we had generally good motives, and there are generally good motives for wanting to criminalize certain types of speech. The Supreme Court wouldn’t sanction it.
Q: One of the most important points that you brought up is that you believe restrictions would not be effective. Would your opinion change if there was reason to believe that hate speech limitations were effective in limiting hate?
A: No, if we are going to criminalize a whole area of speech, it’s going to be very difficult to define. What's hate speech then? Is it going to be a stereotypical joke, are we going to take comedians to jail who make offensive jokes? Is it going to be just neo-Nazi groups or the Klan that are affected? It is just too vague to have as an enforceable law and our criminal laws cannot be vague, they have to be specific. It’s almost going to be impossible to really define what kind of criminal speech we are dealing with, if you can’t define it how you can enforce it.
Q: Previously you mentioned this idea of clear and present danger in dealing with the limitations of speech. Could you clarify where this line of clear and present danger is?
A: Clear and present danger is the American legal standard for incitement and it emanates from a case in 1919 a case that involves communists, socialists, and anarchists and it was developed and honed into a finer point in a case called Brandenburg v. Ohio, a case from 1969. Brandenburg v. Ohio involved a Ku Klux Klan leader who was giving a speech and was arrested and charged under an Ohio law and convicted. He challenged the conviction and brought it all the way up to the Supreme Court and the U.S. Supreme Court said that we cannot convict someone of their speech unless that speech creates a clear and present danger of imminent lawless action. This is the American standard and it comes out of a case involving the Ku Klux Klan and most right minded people are not going to support the Ku Klux Klan. However, our standard says that this speech must incite people, which means more than encourage, to commit an act of violence immediately. It’s a real difficult line to grasp especially for people outside the free speech community because clear and present danger has a precise meaning.
Q: So what you are saying is that some Neo-Nazi leader could declare that the evil money grubbing rabbis ought to be killed, then someone carries out the deed and the leader encouraging it wouldn’t be culpable?
A: The person who commits an act of violence is obviously going to be responsible for that but the speaker could be responsible if somebody went and did something like that. Again, it must be an almost instant reaction.
Q: Does the law take into account psychological harm? If someone is being harassed verbally the law takes that into account, what if hate speech creates this psychological harm. Should it not be regulated to ensure the well-being of American citizens and the common good?
A: That’s an interesting question, there is a viable tort called intentional infliction of emotional distress and that requires elements that the speech has to be intentional, it has to be outrageous, outside the bounds of decency, and it has to cause emotional harm. It is a very difficult tort for a plaintiff to win on, it’s almost impossible. You don’t see a lot of winning claims on that but there could be a viable cause of action there. It’s almost sort of an insult tort but even in American law, insults are not necessarily going to be actionable. If a preacher was casting a large group of people in a negative light it is going to be difficult for an individual to say that was all about me because the law takes into account individuals.
Q: Your position is clear that you do not believe that hate speech should be regulated and that it doesn’t exist legally in the United States, so how do you think anti-Semitic speech in the public sphere should be dealt with? Also, what do you think of those organizations and individuals in the U.S. and in particular Europe which advocate limiting hate speech legally?
A: Look, I hate Nazis. I hate anti-Semitism. I don’t like hate speech across the board so I think in a civil society the best way to deal with it is to counter it and there are groups which do a great job in countering it such as the ADL, ACLU, NAACP. The best way to counter ignorance and speech that we disagree with is to fight it with more speech. Luckily there is no lack of public interest groups that are eager to enter the debate so it’s important to act quickly to counter the speech and it is probably the most effective way to deal with it.
Q:Thank you for your time.
A: My pleasure.