Study Notes on Free Speech, Hate Speech, and the Problem of (Manufactured) Authority

Canadian Journal of Law and Society / Revue Canadienne Droit et Société, Volume 29, No. 1, 2013

Article Information

  • Author: Sarah Sorial
  • Title: Free Speech, Hate Speech, and the Problem of (Manufactured) Authority
  • DOI: 10.1017/cls.2013.43
  • Pages: 59–75

Abstract

  • The concept of incitement is misleading in identifying hate speech, as it may misplace harm caused by speech.
  • Hate speech can be expressed as “reasoned argument” or academic debate by authoritative persons, potentially inflicting greater harm.
  • Literature shows authoritative speakers can influence uptake for their views.
  • The paper discusses how authority can be manufactured, highlighting the need for awareness of how such authority can cause harm and potential mitigation strategies.
  • Keywords: free speech, hate speech, incitement, authority, Holocaust denial.

Résumé (French Abstract)

  • Suggests that the notion of incitement misattributes speech harm.
  • Hate propaganda under the guise of logical argumentation from authoritative individuals can be more damaging.
  • Authoritative experts can secure agreement and their expression needs careful examination to comprehend its impacts.

1. Introduction

  • The relationship between hate speech and free speech limits centers on whether hate speech can cause harms, with legal frameworks often defining hate speech through “incitement.”
  • Incitement captures overt racism and prevents regulation of speech based on content.
  • Protecting speech limits the types of speech subject to regulation, typically focusing on inciting violence and hatred.
  • Problems Identified:
    • (A) Legislation may punish speakers failing to express themselves appropriately, often the less educated or articulate.
    • (B) Extremist groups adapt their language to avoid legislation, rendering their speech more civil and enhancing acceptability among broader audiences.
  • The paper argues incitement as a metric is inadequate for identifying sophisticated types of hate speech, often misidentified as political or academic discourse.

2. Extreme Speech and Incitement

  • Definition: Extreme speech goes beyond legitimate protest, advocating violence or hate.
  • Identifying the difference between hate and mere disagreement requires additional elements, typically captured via incitement.
  • Jurisdictions, like Australia and Canada, have laws regulating extreme speech, often defined by public acts inciting hatred or contempt.
    • Criminal Provisions: Focus on public acts inciting hatred and violence against identifiable groups.
    • Civil Provisions: Typically require less stringent language than criminal ones but still define hate speech similarly.
  • Case Statistics:
    • Canada saw 93 prosecutions under section 319 (1984-2004), with only thirty-two convictions.
    • Australia reported 618 complaints under the Racial Discrimination Act in 2001, with minimal successful prosecutions.
  • The form/content distinction reflects that how speech is expressed significantly affects the likelihood of legal action, as shown in the decisions of legal cases.

3. Racism as Academic Debate? The Case of Holocaust Denial

  • Case Studies: Examines R v Zundel and Jones v Toben concerning how Holocaust denial is presented as academic debate, which obscures its harmful effects.
  • Holocaust denial isn't prohibited but only statements injurious to victims, meaning aggressive critiques in scholarly tones may evade legal scrutiny.
  • Zundel's Defense: Employed expert testimony to redefine Holocaust denial as “academic.”
    • Language of Holocaust deniers often employs specific rhetorical techniques to give credence to their falsehoods.
  • Tribunal Findings: Concluded that Zundel's material vilified Jewish people, creating an environment for deep-seated hatred. Emphasized that better-constructed arguments might have influenced legal outcomes.
  • Toben Case: Emphasized expression of Holocaust denial through academics rather than overt hate speech, reinforcing the condition of speech relevancy over content.

4. Manufacturing Authority/Legitimacy and the Question of Harm

  • Mechanisms of Influence: Speakers viewed as legitimate can easily sway public perception through authority.
  • Authority Types: May stem from educational, religious, or state support, imposing obligations through normative speech.
  • The risks of speakers in authoritative positions are pronounced; they can reinforce harmful societal norms without explicit intention.
  • Expertise Misrepresentation: Individuals manipulate perceived expertise to gain authority, affecting audience judgments.
  • Societal Impact: Social media and internet empower disparate communities, enabling more effective dissemination of harmful ideologies.
  • Educational Consideration: The difficulty in assessing expertise underscores the importance of social networks in belief formation.

5. Conclusion

  • Advocates recognizing the dangers posed by sophisticated forms of hate speech marketed as legitimate debate or political discussions.
  • It’s essential to distinguish between harmful discourse masquerading as academic argument to mitigate its impacts.