As member states of the European Union have adopted laws and programs to curtail inflammatory and hateful expression, American observers have considered the efficacy of these measures. European judicial rulings now address the balancing of rights at stake in the cases that require social media censorship and the application of these laws is under scrutiny. There is also the fundamental debate as engaged in European communities as to what groups or individuals are the subjects of these speech-restrictive efforts. In essence, are these policies actually functioning as a normative and legal “Heckler’s Veto”? What results are evident in societal trends and governmental impulses to further curtail speech that a subject considers offensive?
Lucinda Creighton, CEO, Vulcan Consulting Ltd
Paul Coleman, Executive Director, ADF International
Soeren Kern, Distinguished Senior Fellow, Gatestone Institute
Moderator: Karen Lugo, Founder, Libertas-West Project
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.
Listen & Download
Announcer: Welcome to The Federalist Society's practice group podcast. The following podcast, hosted by The Federalist Society's International and National Security Law Practice Group, was recorded on Tuesday, May 8, 2018, during a live TeleForum conference call housed exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's Teleforum Conference Call. This afternoon our conversation is titled European Union Incitement to Hate Policies: Their Targets, Cases, and Consequences. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are happy to have a wonderful panel assembled for this topic, and our moderator today is Karen Lugo, who is the Founder of the Libertas-West Project. After hearing from all of our speakers in the order Karen will describe, we will move to an audience Q & A, so please keep in mind what questions you have either for the subject or for the individual speakers. Thank you all for speaking with us today. Karen, the floor is now yours.
Karen Lugo: Thank you Wesley. Our discussion today addresses both incitement to hate speech regulation, and the extralegal social media codes of conduct. The European Union has supplied guidelines for social media community standards that were recently fashioned into the Network Enforcement Act in Germany. But the first judicial review of this law in Berlin resulted in a ruling that reversed a Facebook decision to delete a post as it commented on some of Hungarian Prime Minister Viktor Orban's remarks on immigration.
In the United States, controversy surrounds social media's application of Section 230 of the Communications Decency Act, where Congress attempted to immunize online platforms against liability for user content. But then, while insulated from this range of legal challenges, these platforms have increasingly censored content according to socially agendized guidelines.
So today, our experts will be addressing a range of hate speech, both legal and policy issues, and the implications in Europe and the United Kingdom. We will begin with Lucinda Creighton, who has a very distinguished political resume in Ireland, and then we will hear` from Paul Coleman, an attorney with Alliance Defending Freedom International, who works from an office in Vienna, and finally from Soeren Kern, who is a Senior Fellow for Transatlantic Relations at the Madrid-based Strategic Studies Group. Please see our email notice for additional information on the very impressive backgrounds of our presenters.
And now we will begin with Lucinda Creighton.
L. Creighton: Thank you very much Karen, and good afternoon everybody. So what I hope to do is sort of outline the context for the development of hate speech laws and regulation across Europe, and focus on firstly, the Pan-European dimension and then on the steps taken by certain member states, some of those that have really honed in on this issue and have put in place pretty stringent measures.
So across the EU, it's fair to say that member states have quite diverse degrees and types of policies and regulation intended both to curb and to criminalize hate speech. They range from what I would regard as quite stringent measures which we've seen in Germany and which you've just alluded to, Karen, where I guess the history of antisemitism has influenced the level of hate speech policies. There's also the likes of The Netherlands which had traditionally been a very keen defender of free speech but has in recent times introduced measures to combat what is perceived to be the growing threat of hate speech.
In Europe, the movement that deals with free expression if you like has its roots in the European Convention on Human Rights, the ECHR, which was originally adopted in 1950. Within the ECHR, Article 10 for example, there is a balance struck if you like because it fronts the freedom of expression to all, but the exercise of this right is conditioned on conformity restrictions necessary for the protection of the reputation and rights of others. The Council of Europe works across all member states to raise awareness about hate speech and the risks which it poses for democracy and for individuals to reduce the levels of acceptance of hate speech and to develop consensus on European policy instruments to combat hate speech. So it's more than merely regulatory if you like, it's also heavily focused on influencing policy an also public discourse.
I guess the difficulty arises in that there is no particular definition of hate speech. It's a term which is used to describe broad discourse that is extremely negative or considered a threat to social peace. According to the Committee of Ministers, hate speech covers all forms of expression that spread, incite, promote, or justify racial hatred, xenophobia, antisemitism, and other forms of hatred based on intolerance. But given the lack of a universally agreed definition of what constitutes hate speech and sometimes rather kind of gray standards on which much of Europe's hate speech laws are based or built, delineating the line between speech that is considered rude or offensive or what is considered insulting for the purposes of criminal prosecution is a pretty subjective undertaking and obviously is subject to human fallibility.
Across the EU, member states have varying degrees and levels of legislation designed to curb and criminalize hate speech, and I think the big challenge is to strike the right balance between freedom of expression and protecting hate speech. I think it's fair to say the policy makers and legislators find that to be quite a challenge.
If I look at specific member states and examples of legislation which has been introduced and is currently being enforced, Germany is certainly a good example. After World War II, the country developed a strong social prohibition against racist and inflammatory rhetoric. I guess that comes as no surprise given the genesis of World War II. Article 130 of the German Criminal Code refers to incitement to hatred and it is a concept that refers to incitement to hatred against segments of the population and which refers to calls for violent or arbitrary measures against them including assault against human dignity of others by insulting, maliciously maligning, or defaming segments of the population.
There have been some recent changes in Germany which you've alluded to. Responding to the growing threat of hate speech online in particular, Germany recently introduced the Network Enforcement Act or NetzDG on the 1st of January of this year which mandates networks that have more than 2 million members to remove evidently unlawful material within 24 hours. Hate speech or fake news that strictly is not illegal, most vanish within seven days. Sites that don't remove obviously illegal posts can face fines up to 50 million euro. So I suppose the question is how effective is that or will it be? It's certainly, I think it's fair to say, the most hard line approach taken by a European government to date and it's already been heavily criticized by opposition parties, journalists, lawyers who argue that while the law is well intentioned, it creates a rather dangerous precedent, potentially a slippery slope to detrimentally impact on freedom of expression.
Critics worry that private companies are much more likely to censor posts than to argue the toss and ultimately risk a pretty hefty fine over what precisely qualifies as evidentially unlawful content, and within days of the law being introduced, there had been dozens of complaints filed against it, probably unsurprisingly.
On the other hand, there are defenders of the law who point to its many uses including the enforcement of a Twitter ban of an AFD, Alternative fur Deutschland politician who used a racial slur to describe at tennis player, Boris Becker's mixed race son, so that is I guess one example where it has been held up as being effective.
If we look to France, France's laws are quite strict also and violations can carry rather heavy fines depending on the severity of the crime. In France, the principal piece of hate speech legislation is the press law in which section 24 criminalizes incitement to racial discrimination, hatred, or violence on the basis of one's origin or membership or indeed non-membership in an ethnic, national, racial, or religious group. So these types of laws have been deployed against individuals and have been effective in imposing some fairly severe punishments. For example, in 2002, four Muslim organizations filed a complaint against the author, Michel Houellebecq for stating that Islam was stupid and dangerous in an interview, and although the court acquitted him, it refrained from doing so on freed speech grounds.
In 2005, the well known and sometimes controversial politician, Jean-Marie Le Pen, who had been the runner up in the 2002 presidential election, was convicted of inciting racial hatred for comments made to Le Monde in 2003 about the consequences of Muslim immigration in France. He was fined on the grounds of inciting racial hatred.
In 2008, actress Brigitte Bardot was convicted on charges inciting racial hatred for her criticism concerning the ritual slaughter of sheep during a Muslim feast and she was ordered to pay 15,000 euro and that was the fifth time she was find for inciting racial hatred against Muslims since 1997.
So in this regard, it could be argued we see the effectiveness of such regulation and certainly the effectiveness in imposing fines on those who make comments that are deemed to incite racial hatred against an ethnic minority group. The press law has been amended so that it applies to online publications now. These new amendments extend the protection for press freedom online but also allow people to take legal action for libelous or hate speech online including blog posts, tweets, and Facebook comments.
So in October 2012, a French court ruled that Twitter should provide the identities of users who tweeted jokes which were deemed to be offensive to Muslims and Jews. That was after the Union of French Jewish Students threatened to bring the social media giant to court when a hashtag emerged on Twitter that translated roughly to "a good Jew" and some users used this opportunity to post antisemitic tweets alongside the hashtag. So it has been and is deployed for those types of cases in France on an ongoing basis.
I mentioned The Netherlands at the outset. In the Netherlands, Articles 137c and 137d of the Dutch Criminal Code operate again to prohibit making public intentional insults as well as engaging in verbal written or illustrated incitement to hatred on account of one's race, religion, sexual orientation, or personal convictions. I think the most prominent case which you may be aware of where this law was applied was in the case of the Dutch politician Geert Wilders when at a campaign rally, he asked a room full of supporters if they wanted to have more or fewer Moroccans in the country. When the crowd shouted back fewer, he replied, "Well, we'll take care of that." He was found guilty of inciting discrimination against Dutch Moroccans after a panel of three judges ruled that his comments were demeaning and thereby insulting towards the Moroccan population.
Although Mr. Wilders has repeatedly expressed his surprise about being prosecuted and claims that he had simply posed a question, the court ruled that while balancing the right to freedom of expression with the right to restrict it, Wilders had chosen to insult a minority, i.e., Moroccans in The Netherlands, to achieve the greatest impact possible when his speech was broadcast. So in this way we can again see how the legislation punishes those who make public insults which insight hatred against once race or a country of ethnicity.
Looking to the UK, hate speech policies are based on the Public Order Act of 1986 and more recently, the Racial and Religious Hatred Act of 2006 and the Criminal Justice and Immigration Act of 2008. The first one, the Public Order Act, states that a person who uses threatening, abusive, or insulting words, behavior, or displays any written material which is threatening, abusive, or insulting is guilty of an offense if he intends to thereby stir up racial hatred or having regard to all the circumstances, racial hatred is likely to be stirred up thereby. Section 5 makes it a crime to use or display threatening, abusive, or insulting words within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby.
However, it has a very low threshold and I think it's fair to say it has mixed results. In 2009, Christian hoteliers were accused by a Muslim patron of calling Muhammad a war lord. They were charged but ultimately acquitted, and in 2010, an atheist named Harry Taylor placed drawstrings satirizing Christianity and Islam in an airport prayer room and was convicted in April 2010 under section 5 and given a six-month prison sentence. So it seems to be applied somewhat arbitrarily and not necessarily entirely consistently.
At an e-level, the European Commission in May 2016 reached an agreement with the internet companies on a code of conduct on encountering illegal hate speech online and as part of the code of conduct, it was agreed with Facebook, Microsoft, Twitter, and YouTube to improve coordination with authorities, improve support to civil society, and support users in notifying the platforms about hate speech while the companies agreed to assess the majority of users' notifications in 24 hours, respect the EU and national legislation on hate speech, improve feedback to users, and improve transparency.
Other platforms have joined since then such as Google+, Instagram, Snapchat, and a range of others and the commission provides an annual progress report which generally reveals the developments and efforts on the part of social media firms.
How effective has it been? Well, the third annual evaluation was announced in January 2018 and it shows that IT companies removed on average 70% of illegal hate speech notified to them. Since the adoption of the code of conduct in 2016, there have been examples of progress. So for example, on average, IT companies removed 70% of all illegal hate speech and notified by NGOs and other public bodies. This has increased from 28% in 2016 and it was 59% in May 2017, so arguably it's increasing steadily. The latest survey shows that all participating IT companies fully met the target of reviewing the majority of notifications within 24 hours, reaching an average of more than 81%, so the figure has doubled compared to the first monitoring around, and certainly represents some positive progress. On the other hand, you could argue that almost 20% has been left available to the public online and has not been removed despite being regarded as unacceptable content. So while progress has been made, it's arguable that it's not sufficient.
The code of conduct has certainly made substantial progress but the commission has been fairly critical on two particular fronts. User feedback is lacking for nearly a third of notifications on average with different response rates from the different companies. So som are better than others. Transparency and feedback to users is, I think, an area where further improvement could be made and that's been identified by the commission. Further dialogue on IT companies and member states who are in charge of prosecuting illegal hate speech offenses really needs to improve.
On average, 1 in 5 cases reported to companies were also reported by NGOs to the police or to prosecutors. This figure has I think more than doubled since the last monitoring report in 2017. So cases need to be promptly investigated by the police and the European Commission has provided a network for cooperation for the exchange of good practices for national authorities, for civil society, and for the tech companies as well as targeted financial support and operational guidance. About two-thirds of the member states have now a national contact point responsible for online hate speech and obviously the target is to have that in place in all of the member states and a dedicated dialogue between the member state authorities and IT companies is under way. So still some work to do there, but it's certainly improving.
The commission last March adopted a recommendation of measures to effectively tackle illegal content online and these recommendations contained a set of operational measures accompanied by the necessary safeguards to be taken by companies and member states and applies to all forms of illegal content including racist and xenophobic incitement to hatred and violence.
So I guess to wrap up, the question is have all of these myriad policies worked? Has the implementation of the different and varying standards of legislation worked across the member states? Well, Europe certainly has a more restrictive regime surrounding free speech compared to, for example, the United States. A lot of that I think can be framed in the historical context, particularly the Second World War. It's my perspective that although it's difficult to delineate what is free speech and what constitutes hate speech because it is, to some extent, subjective.
The measures that have been introduced across the EU have been relatively effective in tackling hate speech and in creating an environment where at least victims feel that there are ways in which they can seek justice and have their concerns and issues addressed. However, with the rise of social media and the increased use of those platforms, there is a definite and real issue around the promotion of extremist and terrorist content engaging with potential targets by recruiters to terrorist organizations. So the steps which have been taken by the European Union and some of the member state governments to introduce legislation which really obliges the companies to tackle this content is necessary. It's welcome and it's arguable that the tech companies involved have gone some way but haven't gone quite far enough to really tackle it.
While a lot of progress is being made, I think it's the case that more needs to be done. There needs to be more cooperation between the social media companies and EU member state governments policing authorities in order to target and to criminalize repeat offenders and to swiftly move to take down illegal extremist content. It's happening but it's not happening quickly enough in some instances and a large degree of that content is simply not being removed at all in some instances. So there's quite a bit done but there remains a lot to do. So I think I will leave it there until the questions and answers.
Karen Lugo: Thank you, Lucinda Creighton. That was a comprehensive overview. We appreciate it. And now we'll turn to Paul Coleman.
Paul Coleman: Thank you very much, and let me just build a little bit on what Lucinda said and add some more examples of the sort of laws that we see in Europe. As was mentioned, I'm based in Austria, in Vienna, and here in Austria, it's a criminal offense to insult or belittle with the intent to violate the human dignity of others. It carries a two-year prison sentence. In Germany, it's also a criminal offense to insult somebody but there's an added twist in Germany because the criminal code says that proof of truth shall not exclude punishment. So you can even tell the truth in Germany but if it insults someone, it's a criminal offense.
In Denmark, insulting the flag of the United Nations carries a two-year prison sentence and another example in Hungary, inciting hatred against the Hungarian nation, so the nation itself, can be a victim of hate speech and that carries a three-year prison sentence.
So all countries across Europe have these and similar laws. They carry heavy penalties including lengthy prison sentences, and I loosely refer to them as hate speech laws but as Lucinda said, because there is no universal definition of hate speech, it's hard to precisely identify what we might call hate speech laws. But we do know that these laws are highly subjective and are powerful tools in the hands of those who seek to shut down public debate. With this sort of language that I've just read out, with the right police man or prosecutor, almost anything could be considered hate speech.
Let me just give a couple of examples. Lucinda gave some other sort of examples that we've seen as a result of these hate speech laws. So in the UK, a teenager was investigated for saying to a police officer who was sat on a horse, he said, "Did you know your horse is gay?" And he was investigated for a homophobic offense, presumably against the horse.
A man in Austria was fined several hundred euros for yodeling in his back garden after his Muslim neighbor said that he was mocking the call to prayer. And a couple of years ago a British politician, a political candidate, was investigated for hate speech during his election campaign for directly quoting Winston Churchill.
We've also seen several Catholic bishops be investigated across Europe, in Spain, in Ireland, in Belgium and elsewhere for sermons they have preached from the pulpit, and many of these cases don't result in criminal convictions. But they're still highly dangerous. A politician criticizing immigration policies is known as a racist, a preacher defending the institution of marriage is labeled a homophobe, and one who dares to advocate for the truth of his or her own beliefs is often labeled a bigot, and this stigma often sticks and it shuts down public debate.
But there are also implications for everyone else, everyone listening in, because we're watching on. We're seeing these people being hauled before the courts and we don't want the police at our door and so what we're seeing in Europe is society self-censoring itself and there's a toxic "you can't say that" culture that's being created. So across Europe, not only do we see these laws being used but they're also being expanded, so to channel Orwell, once the shrinking dictionary begins, there really is no logical stopping point.
We saw a lot of these laws hit the statute books in the middle of the last century and since then, we've seen them grow and grow and grow. First of all, we see the scope of these laws expand. What began with laws against racism now includes Islamophobic hate speech, homophobic hate speech, transphobic hate speech, misogynistic hate speech, and so on and so forth.
Belgium became the first country in the world to criminalize sexism and so making a sexist comment in a public space became a criminal offense and the first conviction was given last month, and here's out the government agency commented on that conviction. They said, "The educational role of this law is essential to achieve changed attitudes and behaviors." In other words, the criminal law is being used to change public attitudes, and I don't think this is going to end well.
Secondly we see the threshold of what constitutes criminal hate speech getting lower and lower. So once, perhaps a few decades ago, only the most extreme forms of speech were considered criminal, but now there are moves to criminalize wolf whistling, silent prayer outside abortion centers, pro-life websites, and many other forms of speech that would never have been considered hate speech just a few years ago.
And thirdly, as has already been touched upon, we can see the means of restricting speech expanding into more and more areas of public life, the most pressing of which is this censorship of social media, and we've seen and heard about the law that Germany has just passed, the crippling fines on tech companies if they don't remove what is called obviously criminal content, and who gets to decide what is criminal content and what is not is somebody that we never get to know, no one gets to meet, there's no appeal against it. It's a tech person in a room somewhere that is getting to make the decision as to what is and is not criminal, and with such heavy fines at stake, it's obvious that they're going to err on the side of censorship. We've already seen some of the ludicrous sort of censorship of YouTube and Twitter and Facebook and the other companies since these laws came to pass.
I mean if we recall, about 300 hours of video are uploaded to YouTube every single minute, so in the last 30 minutes of this call, there have been thousands and thousands and thousands of hours of content loaded up to YouTube, and then if we think that there are millions of tweets sent every single day, millions of posts on Facebook, we know it is impossible for this sort of content to be adequately and properly analyzed, so I think it's my fairly safe prediction that what will happen is arbitrary enforcement. The authorities will pick and choose what sort of speech they want to censor and how and it will almost certainly be the speech that goes against the political orthodoxy of the day, that addresses hotly debated political issues that the powers that be want silenced.
So I really look forward to some of the Q&A to come but to wrap up these introductory remarks, I'll just say that having researched these laws over the last number of years, located and translated and documented as many of them as I can into English and studied the cases that follow from them, I'm convinced that Europe's hate speech laws don't work, that they're counterproductive, they're highly dangerous, and they're dangerous to democracy itself. Thank you very much.
Karen Lugo: Thank you, Paul. I also wanted to mention that Paul has written a book entitled Censored: How European Hate Speech Laws are Threatening Freedom of Speech. And then to Soeren Kern. Soeren, as we ask for your comments, please feel free to take the time you need, and I will just defer moderator questions to the Q&A section.
Soeren Kern: Sure. Thank you for inviting me to this very interesting topic. I agree with all the comments made by the first two commenters. I think I'd like to really just put this into a political context very quickly. I think that although many of these hate speech laws have been on the books since the end of the Second World War, the enforcement of these laws has really taken a very strong step forward after 9/11. I think there's a lot of fear. The motivation of a lot of these laws is the fear of social unrest and particularly terrorism.
We've seen, for example, in 2002 that in France, Michel Houellebecq was taken to court for calling Islam the stupidest religion. He was later acquitted. The judges said he didn't despite Muslims. He just had a contempt for Islam. That same year, actually about a month later, Islamists filed a lawsuit against Oriana Fallaci in Italy. The Swiss authorities actually asked the Italian authorities to extradite Fallaci which they refused to do, but you really see that after the year 2001, 2002, there was been a very marked, notable increase in these so we see basically the case of Lars Hedegaard and Jesper Langballe in Denmark. We see Elisabeth Sabaditsch-Wolff and Susanne Winter in Austria. We see [inaudible 00:34:12] who is a politician in Finland. We see Marine Le Pen, Brigitte Bardot, George Ben-Sasson, Michel Houellebecq in France. In the Netherlands of course we have Geert Wilders and others, and so I think that the fear of the minority groups and European countries, the fear of social unrest, similar to what we saw in Paris, the mass riots in 2005, is what is driving some of this attempt to clamp down on criticism of Islam.
I think the other political context of this really is multiculturalism. After the end of the Second World War, there was really a decision to de-emphasize nationalism so there's really a strong effort afoot to de-Germanize Germany and de-Frenchify France and to bring in all of these foreign cultures particularly from the Arab and Muslim world into this sort of melting pot. This is not working out the way, you know, the integration of migrants in Europe works in a very different way than it does in the United States.
So I think that the context of Islamic terrorism, of multiculturalism, also of demographics, European birthrates are very low and there's a need to bring in migrants from abroad to keep the social welfare state alive. So just by geography, many of the migrants come to the United States are from Latin America. By that same geography, many if the migrants coming into Europe are from the Middle East and North Africa so these are culturally very different, to bring these people from the Muslim world into the sort of Judeo-Christian world, so we see a lot of tensions and a lot of resistance to this mass migration, and we see related attempts by European governments to clamp down on any criticism of these sorts of policies.
I think that I was asked to comment on how the restrictions on free speech have acted to control speech and I think really what happens is that with all of these lawsuits, little by little, people are beginning to self center themselves. There is great fear of litigation, of costs involved with litigation, of the damage to reputations for being branded a racist and I think that there is a lot of fear particularly in the case in Germany. There are a lot of people who habitually voted for the center-right Christian Democrats who have abandoned ship and have joined the alternative for Germany, the AFD. Because of a lot of these policies that are put into place, not just the mass migration but also the attempts to clamp down on criticism of Islam, of mass migration, and of all of these sorts of customs like the non-European customs that are being brought into Germany and other European countries through multiculturalism.
So I think really that the restrictions on free speech are really creating a climate of fear, of people who do not want to be accused of being racist. People fear for reprisals on their job, against their family if they come out in favor of criticisms of these European policies.
I was also asked to comment on the effect on the culture clash between the Europeans and Islamists. I think there really is a fear to discuss issues, taboo topics such as Sharia courts, no-go zones, the rise of polygamy in Europe, child marriages. There's a rape crisis in Scandinavia and in Germany, in other European countries, and female genital mutilation. A lot of these practices, these cultural practices that are being brought into Europe from the Islamic world clash very clearly with the host countries. So I think that as people are afraid to speak out against these things because of these hate speech laws, because of the fear of being stigmatized, that really we see a gradual encroachment of Islamic values at the cost of European values.
I was asked to comment on how governments have used the authority to silence those who would challenge government policies on migrant crime and on the lack of assimilation, and here again, I think it's very important to point out that many of the European media are subsidized by the European governments. It's particularly the case in Germany, so there is a really collaboration between most of the mainstream media outfits in Germany and the German government to really shame people who speak out against this mass migration with consequences of the Islamization of these countries. We really see in Germany people have been called Nazis in pinstripes, and these are politicians on the left and on the right who have called people who are critical of these mass migration policies as Nazis and as rat catchers, and they obviously brand everybody as a far right person, and this in the context of the Second World War in many cases I think is very damaging to people's reputation. There's a real fear.
What do I think is going to be the long term effect of all this? I think that as the previous commentators have pointed out, that there is a massive effort under way to clamp down on free speech. Facebook just announced yesterday that they're going to hire 300 people in Barcelona to set up a new fake news outfit to sort of decide what is fake news and what is not fake news. Again all these issues are very subjective. There's really no way to tell what is fake anymore and what is real. It's sort of in the eye of the beholder.
But on the other hand, I think that publics are beginning to wake up. We see the rise of opposition parties across Europe, sometimes referred to as far right parties or as populist parties, but really in France and in the Netherlands and in Germany, some of the Scandinavian countries and the UK, and now in Italy, we really do see the rise of Euro-Skeptic parties, parties who are beginning to call out these draconian restrictions on free speech, so I see that over the long term, there is an effort by European publics to wake up and to hold European policy makers to account for this, so I'll just leave my comments at that.
Karen Lugo: Thank you Soeren Kern, and Wesley, I'll turn over to you to go directly to Q&A. I just would note very briefly as the presenters are considering their answers and further comments, I have an interest in hearing a little about what we in America consider the heckler's veto where our courts have called action by a minority group to change or stifle conduct or speech of people that are generally in the culture or considered a majority group. The heckler's veto can be a very powerful weapon for threatening even in advance that we will act out or that we will respond with a certain action if things are said that are considered inflammatory or offensive to us or in the case of our legal history, even some various practices that occurred in our historical past.
So as Soeren Kern, we were kind of developing the topical coverage for the call, some of the writing that he has done has suggested that there may be a perception on the part of citizens in certain European countries, that the government may even use some of these hate incitement laws to shield government accountability when it comes to governments possibly not always reporting whether their acts and codes and speech laws have been effective. So certainly for all of us western cultures evaluating these things, government transparency and accountability is a very important factor. So thank you all, presenters, and Wesley, I'll let you take it to Q&A.
Wesley Hodges: Wonderful. Well, in a moment you'll all hear a prompt indicating that the floor mode has been turned on. After that to request the floor with your question, just enter the star key and then the pound key on your telephone. When we get to your request, you'll hear a prompt and then you may ask your question. We'll answer all questions in the order in which they are received. Again if you'd like to ask a question for the subject or for any of our speakers, just enter the star key and then the pound key on your telephone. It looks like we do have one question in the queue and we have plenty of time for additional questions, so Karen, if it's okay, I'll go ahead and move to the first caller.
Karen Lugo: Absolutely.
First Caller: Hello? Hi, I know that the first speaker attributed many of these speech restrictions to the Second World War, but isn't it true that [inaudible 00:44:26] Germany and France really have a much deeper tradition of restricting speech and restricting insults to protect honor? I know that James Whitman of Yale Law School has written a lot about this, that back in the 19th century to protect the aristocracy from insults and social reform, that Germany had more restricted laws and in fact, I think one of the group insult laws we have today derives from the first prosecution of someone who insulted the SS back in 1934.
So while it's possible that it's now done to protect those who are considered more vulnerable or religious minorities whereas in the past it was done to protect those who are on the top, the aristocracy, isn't it true that much of that speech restrictive tradition dates back well before the Second World War? Hello?
L. Creighton: So should I answer that?
Karen Lugo: Yes, go ahead.
L. Creighton: Yeah, I think that's not an unfair analysis. I think it's true to say that much of the current legislation which prevails today in Europe is legislation that was introduced in the aftermath of the Second World War if you look at the European Convention of Human Rights which is in a sense the underlay if you like to a lot of the national legislation, and if you even look at the date of enactment of some of the legislation in some member states, it can be traced back to the Second World War. That's not to say that those types of laws weren't part of European culture and European psyche prior to that, and as you say, possibly for different reasons or with different motivations.
I guess what we're seeing now in the last number of years is sort of a new wave of regulations of speech which I think has been very eloquently outlined there by Soeren which is very much a response or reaction to some of the social change, in particular immigration in Europe in the last couple of decades. So like all policy making and legislation, it comes in waves and can be attributed to different triggers at different points in time, but I think the point you make is true and fair, yeah.
Paul Coleman: If I could just build on that, I'd also say that the preexisting restrictions on speech, particularly in Nazi Germany is one of the reasons why we ought to be skeptical at least of hate speech laws today because one of the primary if not the primary driver behind hate speech laws is fear of violence. So we want to preempt any possible future violence by banning the word before the deed, and that's very much at the heart of a lot of these laws, and people point to Nazi Germany. They say if only Germany had these laws. Then we would never have had the antisemitism that led to the rise of the Nazi party and national socialism.
So I think it's very important to point out that there were speech restrictions in Germany and they were utterly ineffective at preventing the rise of Nazism just as they were utterly ineffective in former Yugoslavia to prevent the ethnic cleansing that took place there and just as they're utterly ineffective in today's modern day Europe at stemming the increase in hatred and extremism, the polarization we're seeing. A lot of these countries that have been mentioned, some of the Scandinavian countries, Germany, France, we're not seeing that these hate speech laws are doing anything to stem the flow of hatred, and particularly looking at places like Sweden.
So I think the longevity of censorship in Europe is one of the arguments against why we should have these hate speech laws today.
Wesley Hodges: Thank you, caller, for your question. We do have two more questions in the queue. Let's go and move to our next caller.
Carter Page: Hi there, it's Carter Page. I had a question. It seems like there's some double standards in terms of these processes within individual countries. It seems at least from my perspective that some national and ethnic groups are protected while others are demonized. Just one case I've been involved in, I'm thinking in particular in the UK with the former MI-6 intelligence officer Christopher Steele who distributed really some of the most highly inflammatory information about a diverse array of Americans and Russians a few years ago which basically spread to all the major media outlets in the UK and worldwide, and it was really based on a lifelong personal hatred towards Russia. Obviously, you were talking about Second World War, they were an ally then, but of course an adversary during the Cold War.
But if you look at his case, there is sort of a lot of pretty proven falsity in terms of the information that he was pushing and someone mentioned that part of the trends that they're looking to deal with are changing attitudes and behaviors and I think what that represented is sort of this same Cold War mindset. I've also noticed Paul's concluding remarks about these trends being dangerous to democracy itself and some of the debates that that false information and hatred led to, according to a lot of people, have had similar impact here in the US. So I'm just curious, particularly given there are so many Russians in the UK and various controversies, whether you've seen any bifurcation of different approaches to different groups. Thanks.
Karen Lugo: Does anybody have a response? Lucinda? Wesley, do we have another question in the queue?
Wesley Hodges: We do. Let's go ahead and move to our next caller.
Third Caller: Good morning from the west coast and thanks to the presenters for a wonderful discussion. My question is whether in light of all the different enactments you've seen in Europe, if you're aware if any pending legislation here in the United States either at the federal level or at state levels that seems to be modeled after some of these same statutes that you've discussed in Germany and the UK and elsewhere throughout Europe?
L. Creighton: I'm not aware of any proposals for similar legislation and the other speakers might have a better insight into that, but I certainly know that when it comes to extremist content and the very narrow focus on terrorist activity online, that there have been several hearings on Capitol Hill in the last few months where both members of congress and the senate have threatened social media companies with some form of legislation or regulation obliging them to remove extremist content. But that's obviously part of the broader debate but it's quite specific and focused. I'm not aware of anything more broadly targeted at the sort of hate speech legislation that we have discussed around language or content that is insulting or I guess arguably more moderate in its impact in total.
Paul Coleman: Yeah, I think the First Amendment at the moment largely shields the US from any of these sorts of laws and I think of the semi-recent Snyder vs. Phelps case at the Supreme Court with the horrible picketers outside a funeral with signs such as Thank God for Dead Soldiers and what have you that the Supreme Court declared to be protected speech, and I think that so long as they consider the most offensive, the most horrid sort of speech protected, there's not going to be any moves for legislation in the near future.
But I do know that there are many wanting to pass legislation and one such person is Professor Jeremy Waldron who wrote a book in 2012 called The Harm in Hate Speech and he made the case why there should be hate speech laws in the US. Interestingly in that book, he bases a large part of his arguments on the fact that in his view, Europe has succeeded in doing so and a lot of what I spend my time doing is trying to point out that I don't think Europe has succeeded in that venture at all.
Wesley Hodges: Thank you, caller, for your question. The queue is now currently open, so if anyone would like to ask a question before we end the call today, just enter the star key and then the pound key. I do want to let everyone know that our next TeleForum conference call is scheduled for tomorrow, May 9 at 2PM Eastern and that's titled Incentivizing Early Fixes: The Department of Labor Paid Program. You can find that TeleForum on our website as well as this one and you'll find there a roster of all of our previously recorded TeleForum as podcasts that you can find on iTunes and Google Play.
There is actually one more question that just popped up in the queue. Let's go ahead and move to that caller.
Fourth Caller: Hello there, a question from Madrid. I was wondering, aside from the German case which pushed back against legislation of the internet, have there been successes in terms of stopping this absolutely terrifying trend of giving so much discretion to administrators and courts and others to decide what the public can and cannot say on political issues? Thank you.
Soeren Kern: I just wanted to say that there is to my mind a push back, maybe not in a legal realm but most certainly in the political realm in Europe. As I mentioned in my remarks, I think that there is a growing awareness among publics of these restrictions on free speech and these attempts to silence criticism of government policies, and I think that is what is resulting really in the rise of alternative parties, parties that are challenging the mainstream parties in countries really across the continent.
I see that as a very positive sign and a trend that will most certainly continue.
Paul Coleman: I would just say I bet there is success insofar as the vast majority of hate speech cases that end up before the courts and in acquittal but we may have to take that success with a pinch of salt because the case is often in the process, is often the punishment itself. So it's very rare. It does happen but the majority of cases don't end in criminal conviction. Many courts say that the person accused should be acquitted, so in that sense there are successes. But the successes will come when these cases don't end up before the courts in the first place in my opinion.
Fourth Caller: Thank you.
Wesley Hodges: Thank you, caller. The queue is now open. No more questions? We only have two minutes left.
Karen Lugo: Wesley, do I have time for a quick question?
Wesley Hodges: Absolutely, please go ahead.
Karen Lugo: I would like to ask the speakers if there is as much emphasis on fake news and filtering that in the EU as there is now in the United States, and is it likely that fake news may be conflated with a person's legitimate attempt to define and describe their culture in the sense that at times, when writing about an incident, is there a hazard that it can be censored, if somebody's expression can be censored and called fake news just because the reader, the censorer, the person who's reviewing it considers it to be not authentic or not agreeable?
L. Creighton: Yeah, I'd just say I think there's a lot of conflation now of the two issues. So there is most definitely in my opinion and also from some research that I've been involved in across a number of the central eastern European countries, there is a significant problem with fake news which is generated in Russia and which is very clearly targeted, Russian speaking individual particularly in the Baltic states but also some of the other central eastern European countries, and that is very focused, it's very targeted, and it is a challenge.
On the other hand, I think there is a mantra which you're probably familiar with in the US as well around information, news publication which is simply unpopular or which is deemed not to be appropriate by the authorities, by news editors, by whichever category of people you choose, which is branded fake news but is not fake news. So I think there is a problem with fake news which is very obvious and very identifiable and very clear, and then there is a problem with the conflation of other issues which actually makes it very difficult to decipher for the public at large I think, and this is definitely causing problems right across Europe.
Paul Coleman: I think the overlap between the issues also can be connected by two questions, both of which can be asked of hate speech, so the two questions I think are always worth asking is where do we draw the line and who decides, and I think we can ask that about hate speech. Where do we draw the line between so-called hate speech and free speech? Where do we draw the line between so-called fake news and what's considered acceptable news and who gets to decide, and I think those two fundamental questions overlap on both the issues and also on both the issues highlight the danger of a top down, heavy handed, police enforcement way of regulating speech.
Wesley Hodges: Wonderful. Well, if that addresses that question, Karen, do you have any final remarks yourself or anything you'd like to ask our panelists before we end today?
Karen Lugo: No, I'd just like to thank them very much for their work in this field and dedication to this subject and for being available to us for this discussion today.
Soeren Kern: My pleasure.
Paul Coleman: Thank you very much.
L. Creighton: Thank you.
Wesley Hodges: Thank you all. On behalf of the Federalist Society, I'd like to thank our experts for the benefit of their valuable time and expertise today. We'll welcome all listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. This call is now adjourned.
Announcer: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at FedSoc.org/multimedia.