Hate speech, the letter and the law

This month has seen the publication of the very first primer on hate speech in my native Norway. Associate Professor Anne Birgitta Nilsen’s (Oslo and Akershus University College, Norway) primer is of particular value in that it addresses hate speech, its social, political and legal implications in a short and succinct form which makes the book’s important message accessible to both lay and specialist readers. In the interest of a full disclosure, I should make it clear at the outset that I have been one of two academic consultants on this book, and therefore have more than a partial interest in it and in the topics raised by it. Nilsen is a linguist by training, has a background in Arabic and Middle Eastern studies, and is therefore in possession of a more critical awareness of what ‘doing things with words’ in the words of the seminal work of the language philosopher J. L. Austin entails than most academics I know of. One of the great merits of Nilsen’s book, which is clearly inspired by what in scholarly circles has long been known as Critical Discourse Analysis (CDA), and has been developed and elaborated by scholars such as Norman Fairclough, Ruth Wodak and Teuns van Dijk, is her keen attention to the actual texture of hate speech. For all too often, in my experience, debates on hate speech and its legal and societal implications pay surprisingly little attention to what hate speech actually looks and feels like – empirically speaking. This is not surprising, in that abstractions and generalizations that many liberal academics trade in often allows one to study the often stupefying nastiness of much hate speech in the comfort zones of convenient distance from those directly targeted and affected by hate speech. It is this and similar kinds of distancing which makes liberal Norwegian elite intellectuals think that mere invocations of the right to freedom of expression and underlining the importance of freedom of expression in a world which since the euphoria of 1989 and all that has seen substantial setbacks to freedom of expression in a great many social and political contexts settle the troubling and challenging questions raised by hate speech once and for all. But the repeating of such mantras of course doesn’t: A principled interest and concern with freedom of expression means that we also as scholars and lay persons alike pay attention when freedom of expression is abused and used to give license to the propagation of hate and demeaning and dehumanizing words and images about our fellow citizens on the most arbitrary grounds. In the latest vivid illustration of the normative and epistemological confusion far-right ritual invocations of freedom of expression leads members of Norwegian liberal elites into, a secular feminist editor of the Norwegian liberal intellectual weekly recently chastised Norwegian anti-racist campaigners for ‘labelling’ a Swedish ‘street artist’ with a longstanding record of neo-Nazi allegiances and several convictions for racist hate speech in Sweden as, well, a neo-Nazi and a racist. “It’s a beautiful thing, the destruction of words” wrote George Orwell in Nineteen Eighty-Four (1948) – and in our time, it is never as beautiful as when propounded by utterly confused liberal free speech absolutists. “We must make the space for expression so wide and so safe as possible”, declared Morgenbladet’s courageous editor, in a spirited defense of a ‘street artist’ who has in actual fact used his freedom of expression to repeatedly incite violence against named Swedish citizens of black African origins by creating a series of ‘artful’ posters in which black African victims of racist violence in Sweden are portrayed hanging in a hangman’s noose like the Afro-American victims of the lynching mobs of the Ku Klux Klan in days of yore.

What that beautiful and principled sentiment tells us about the same liberal editor’s willingness to defend the freedom of expression of those this specific hate speakers attempt to hound and bring to silence through the ‘artist’s’ own uses of freedom of expression for the purposes of advancing racism is of course anyone’s guess.

Or, as Albert Toscano in reference to the normative and epistemological confusion of the hegemonic liberal elite ‘Enlightenment warriors’ of the present has remarked: “What we are left with is the ideological comfort of fighting on the side of the powerful while presenting oneself as a member of a beleaguered and courageous minority” (page 100).

As Nilsen rightly notes, hate speech seems to be a more or less universal phenomenon (page 23). So what is it exactly? A consultation of recent scholarly literature on hate speech throws up a wide range of definitions. Caleb Yung has correctly indicated that hate speech is quite an imprecise term.  Yet he goes on to offer up quite a useful definition in arguing that hate speech entails:  “(1) targeted vilification, (2) diffuse vilification, (3) organised political advocacy for exclusionary and/or eliminationist policies, and (4) other assertions of fact or value which constitute an adverse judgment on an identifiable racial or religious group” (pages 386-87).  For Katharine Gelber hate speech is “speech or expression capable of instilling or inciting hatred of, or prejudice against, a person or group of people on a specified ground.” It is “by definition, directed at a person or group of people that faces prejudice, such as a racial or sexual minority.” Furthermore, for Gelber, “it is speech that harms identified targets and the communities to which those targets are perceived to belong by ascribing negative stereotypes to all perceived members of that community” (pages 83-84).

“Hate rhetoric conveys negative attitudes and views vis-a- vis the targeted groups and its members”, writes Nilsen (page 17). For me, however, the adamen that ‘you know it when you see it’ is as good as any definition when it comes to identifying hate speech, its look and its feel. So let me then offer some recent examples from Norway from recent years. By way of contextualization these are all examples of hate speech in cases in which there have been no charges and no prosecutions on the part of Norwegian police authorities tasked with overseeing these matters.

In November 2012, a young Norwegian Muslim, who for some years had been active in the mediated public spheres in Norway, reported the various Facebook postings he had received from non-Muslim Norwegian right-wingers received on his Facebook wall. In the posts, Muslims like himself were referred to as “vermin” (“skadedyr”) and ”rats” (“rotter”). He was warned that he would one day be “fucked in the arse [rævpult] well and thoroughly before we throw you to the pigs” – the implication of course being that he (contrary to the actual facts, for the Muslim in question is also, as it happens, an active campaigner against homophobia) as a Muslim is bound to be homophobic, and to abhor pigs.

In May 2014, a young woman of Muslim background reported in an op-ed in the Norwegian liberal-conservative newspaper Aftenposten on a series of threats she had received in letters, SMS messages and on her phone as a result of her speaking in public.

One of the SMSes read: “You fucking whore! I will have the blood pour from your dirty body and quash the air from your lungs the next time I hear from you [in public, my insertion]. You either shut up or I will have you to shut up forever. The choice is yours.”

Here we are, to my mind, at the crux of the matter. “Under what conditions does freedom of speech become freedom to hate?”, the feminist philosopher Judith Butler asked back in 2011.

For what’s really at stake in a liberal and secular society in which the freedom to engage in racist and discriminatory hate speech often seem to overrule any other concern, is in fact the ability and willingness of people of various minority backgrounds (whether they be Muslims, Jews, Roma, black African or other) to use their freedom of expression to engage in what is known as ‘counter-speech’.

For much hate speech is, as my empirical examples above illustrate, designed to function as ‘speech which silences speech’ by making the free public expression of individuals of certain backgrounds much harder to engage in, and the worlds of such individuals and the wider communities to which they belong by birth or choice much harder to live in. How do I know? I have since 2009 undertaken a series of interviews with and tracking of media contributions by some of the young people of Muslim minority background who have been among the most active in Norwegian mediated public spheres for a monograph entitled The Politics of Mediated Presence: Exploring The Voices of Young Muslims in Norway’s Contemporary Mediated Public Spheres, which is forthcoming next year. Based on this research, I happen to know well that among my informants, there is not a single person who hasn’t received serious and systematic verbal abuse and harassment on- and offline as a direct consequence of their public engagement. The public sphere being a proverbially ‘impure’ place, that is something most people regardless of background who are active in the mediated public spheres must be prepared to countenance, but there is after all much evidence from Norway and elsewhere to suggest that people of minority background as well as women are more likely than others to experience it in our day and age. That is also a reflection of the assymetries of power which characterizes the mediated public spheres in Norway and elsewhere -assymetries which contributes to a mainstream mediated representation of certain minorities in our time which might – as scholars such as Maleiha Malik have long pointed out – in their effects be as pernicious as any extremist hate speech directly targeting them. These are furthermore assymetries  routinely ignored whenever civil libertarians invoke Oliver Wendell Holmes’ dictum to the effect that ‘the answer to speech is more speech’. Is this a democratic problem? It sure is – and shouting ‘free speech!’ at anyone who thinks there is a case for limiting hate speech in the name of preserving the democratic right to free expression of all citizens irrespective of background does in fact not do anything to resolve it. In many cases, what provokes the hate of the haters when people of minority background raise their voices in public and demand to be heard in Norway and elsewhere is, in order to paraphrase the feminist classicist scholar Mary Beard, “not what you say…[but]… the fact that you are saying it.”

When international law and conventions ranging from the UN Declaration of Human Rights (UNDHR, 1948) via the European Convention on Human Rights (ECHR, 1952) to the International Convention For The Elimination of All Forms of Discrimination (ICERD, 1965) and the International Convention on Civil and Political Rights (ICCPR, 1967) proceeds on the understanding that freedom of expression is not, and cannot be an absolute right in any society which calls itself liberal and democratic, it is of course not because its drafters were ‘totalitarian arseholes’ as some of the more childish civil libertarians and their scholarly supporters of our time seem to like to think, but because we know all too well from the darkest chapters of modern human history that freedom of expression may be used for the most nefarious purposes and to propagate hate, racism, discrimination, violence and genocidal acts, whether it be in Nazified Europe from 1939 to 1945, Rwanda in 1994 or Bosnia from 1992 to 1996.

The counter-argument of civil libertarians to the abuses of freedom of expression entailed in hate speech is more often than not that such translations from ‘fighting words‘ to ‘fighting deeds’ ‘couldn’t happen here’.

To which the only and obvious riposte would be: ‘How do you know?’ For it certainly cannot be modern European history which provides one which such absolute certainties and pieties.

Starting in the aftermath of the Rushdie affair (1988-1994), liberal and hegemonic elites in Norway, including media, legal, political and academic elites, engineered a significant shift in the understandings of freedom of expression and its limits in Norway. These hegemonic elites (fractured as they are, as all hegemonies are) moved in the direction of much more free speech absolutist understandings of freedom of expression and its limits. The results were plain for all to see: The Norwegian Supreme Court in its 2002 acquittal of a prominent Norwegian neo-Nazi for anti-Semitic and racist speech adopted what can only be described as revisionist approaches to Nazism in arguing that to be a neo-Nazi did not necessarily entail being supportive of violence against individuals historically and presently targeted by Nazi violence. The acquittal was hailed as a great victory for free speech by media editors left and right in Norway at the time, but received a clear rebuttal from the ICERD Commission in the form of its 2005 finding that the Norwegian Supreme Court’s acquittal of Sjølie for charges under Norwegian General Penal Code Paragraph 135 (a) meant that Norwegian authorities stood in breach of the ICERD Convention’s articles 4 and 6.

Norwegian General Penal Code Paragraph 135 (a) was never much applied by Norwegian prosecutorial authorities and courts since its erstwhile introduction in 1970, which came as a direct result of the Norwegian authorities’ ratification of the UN ICERD Convention of 1965. But if Norwegian prosecutorial and court record from the recent decade is anything to go by, it is easier these days to be convicted of defamation for accusing an individual of engaging in racist hate speech than it is to convict an individual for racist hate speech. This is also a result of Norwegian courts adopting a very narrow and restrictive concept of racism in cases under Norwegian General Penal Code Paragraph 135 (a) which limits it to the biological racism prevalent in the era of so-called ‘scientific racism’ (c. 1850- 1945).

This is somewhat paradoxical, in that both Norwegian and international law on racist and/or discriminatory hate speech clearly and demonstrably does not limit itself to biological racist speech: The popular media term for Norwegian General Penal Code Paragraph 135 (a) as the ‘racism paragraph’ is to all extent and purposes a misnomer, as the paragraph as last amended by the Norwegian Parliament – the Storting – in 2009 covers discriminatory speech on the grounds of religious beliefs and life stance, sexual orientation and physical and/or mental disability.

Though there are still the racist oddballs who talk about the dire need to restrict immigration of black Africans to Norway due to the latter’s alleged ‘low IQ levels’ (apparently not realizing that IQ measurements are always and inevitably culturally specific) and the existence of ‘four races’ around in Norway, biological racism is far from the dominant mode of articulation of racism in Norway and Scandinavia these days – in fact it has not been so in decades – as far-right activists learned the strategic and legal advantages of replacing ‘race’ with ‘culture’ talk and to replace Jews with Muslims as targeted groups in the 1980s already.  By and large, Norwegian courts have ignored applying the law of the land to the most important outlet for hate speech in our time – namely the so-called ‘new’ social media – or online hate speech.

Hardly a week now goes by without some new disclosures of Norwegians engaging in racist speech on Facebook or Twitter.  They are most often or typically the expressions of ordinary Norwegians with some form of far-right sympathies, but there are also Norwegian professors of history with a record of writing Facebook posts whilst sloshed on red wine among their numbers:

Norwegian liberal hegemonic elites’ chipping away at legal protections against racist and/or discriminatory speech have proceeded gradually: A central concern has been to have the protections against racist and/or discriminatory speech on the grounds of an individual’s religious beliefs removed from the ambit of Norwegian General Penal Code 135 (a) on the ostensible grounds that this has a ‘chilling effect’ on ‘critique of religion’ in a liberal and secular society such as Norway.

The idea was first mooted by the Norwegian Freedom of Expression Commission (1996-1999), but failed to pass parliamentary muster.  The exercise has recently been repeated in a parliamentary motion initiated by a small cross-party group of parliamentary strange bedfellows, but at the time of writing looks unlikely to succeed.

Both initiatives indicate a relatively poor insight into and command of Norwegian court practice relating to Norwegian General Penal Code 135 (a) dating back to the 1980s. For in the case against Vivi Krogh, who in 1981 was found guilty under the law for the offense of having distrusted thousands of racist leaflets targeting Norwegian Pakistanis, the Norwegian Supreme Court established the principle that Krogh and the many other Islamophobes who were to follow her in the decades to follow could in actual practice say whatever they fancied about Islam, though not about individual Muslims.

On the initiative of enthusiastic ‘Young Turks’ of civil libertarian inclinations within the Conservative Party and the Progress Party (in government in Norway since October 2013), both parties’ programmes commit the parties to the formal abolishment of Norwegian General Penal Code 135 (a). Since coming into power, however, it has become quite clear that this is not particularly high on the agenda of Prime Minister Erna Solberg of the Conservative Party (herself a known supporter of 135 (a)), and one or two legal advisors among the many competent bureaucrats at the Norwegian Justice Ministry is also likely to have whispered it into civil libertarian ears that it’s a bad idea for Norway to breach its commitments under international conventions by so doing.

There is a great paradox in that the liberal and hegemonic elites in Norway who are profoundly committed to advancing the case for free speech absolutist positions in Norway often invoke popular interests and democracy as central elements in their argumentation, or to put in other terms, often claim to be acting in the name of the interests of the freedom of expression as a fundamental democratic right of ordinary people that may under no circumstances whatsoever be infringed upon by legal or social sanction. For what we do know from national representative surveys which have generated much consternation in liberal and hegemonic elite circles over the failure of these very same elites to ‘civilize’ ordinary Norwegians into the seemingly irresistible love of the virtues of free speech absolutism, is that ordinary Norwegians are by and large overwhelmingly opposed to free speech absolutism, finds racist and/or discriminatory speech in public unacceptable, and wants to retain the balancing between freedom of expression and the freedom to have one’s individual human dignity protected against racist and/or discriminatory hate speech. And that these attitudes generally apply for Norwegians across the political board, though more in the case of women than men (Norwegian men being, incidentally, also far more likely than Norwegian women to favour far-right political formations when voting).

The legal scholar Eric Barendt in his standard work on freedom of expression also argues in favour of balancing as necessary in the case of freedom of expression and its exercise: “It is not clear that speech should necessarily enjoy priority if its dissemination infringes other rights.”  As “free speech itself[…] relies on background claims about the autonomy of human beings or their entitlement to equal respect” – there is, then, according to Barendt, “no alternative to balancing freedom of speech and dignity in the context of the particular facts” (pages 32, 34).

Academics who have studied Western European countries approaches to the problem of hate speech since the 1960s in detail, such as the US political scientist Eric Bleich, do not report having found much evidence of the proverbial ‘slippery slope’ towards the spectres of authoritarianism, ‘thought control’ and a ‘thought police’ so regularly invoked by civil libertarians either.

Anne Birgitta Nilsen distinguishes her approach to hate speech from that of Professor Jeremy Waldron  for whom the intention hate speech in Nilsen’s interpretation of his most recent work on this issue is the prevailing concern. The intentionality of hate speech is arguably central to Waldron’s approach to it, but I am not entirely convinced that Waldron’s approach need be limited to intentional hate speech. Humans being as they are, we often say things (all of us, including academics) that may be hurtful to our fellow human beings, and which we in a profound manner ‘didn’t mean to say’, whether in affect, under the influence of alcohol, or in a state of being depressed: It nevertheless qualifies as hate speech. In order to give a concrete example: The last conviction in a case of racist and/or discriminatory speech under Norwegian General Penal Code 135 (a) to be upheld by the Norwegian Supreme Court in 2012 involved a man in his thirties from the Norwegian petroleum revenue-soaked city of Stavanger on the West Coast who in an intoxicated state one fine summer evening in 2010 yelled racist abuse at a black African doorman who had refused him entry to a bar on the grounds of his intoxication in the presence of a tenfold of witnesses.

The defendant argued quite unsuccessfully in both the lower and the higher courts that he was full of contrition for his words and actions that night, but would never have countenanced doing what he did if it wasn’t for the fact of his being intoxicated.  Anne Birgitta Nilsen argues in her book that the potential effects the specific language use that hate speech may have on its audience (listeners or readers) should be the pre-eminent concern. This of course opens up the prospect of a counter-argument to the effect that forms of speech which I personally may see as potentially demeaning and dehumanizing for others – including those directly targeted and/or affected by it may not necessarily be so. This is in fact the very point at which I find Waldron’s otherwise excellent The Harm in Hate Speech to be at its weakest. For it relies on a too weak theorizing of the concept of human dignity, a human dignity which is at the very core of what Waldron thinks liberal and secular societies have a legitimate interest in preserving and defending as a right for all citizens irrespective of background, skin colour, gender or creed. That’s not to suggest that Waldron the political philosopher doesn’t know his way around the scholarly literature on dignity too – for the sequel to The Harm in Hate Speech was precisely about dignity.

But let me here make a detour to the work of the political scientist Michael Rosen in trying to expound on the problematique raised by the concept of human dignity. Rosen, in an entertaining yet ultimately significant and highly illustrative empirical example of the fact that the concept of human dignity has a strong subjective, and therefore inherently variegated side to it, tells the story of a French dwarf by the name of M. Manuel Wackhenheim who was prevented from making a living as an entertainer by the French Conseil d’Etat. In response to an order issued in 1991 by the Mayor of the small French commune of Morsang-sur-Orge prohibiting a dwarf-tossing competition at a local discotheque in which Wackhenheim offered members of the audience to compete in tossing him about, Wackenheim entered a long and torturous road in the French and international courts to have the ban overturned. The argument presented by his detractors was that the very way in which he made his living infringed on his intrinsic human dignity. This was an argument which eventually carried the day, not only with the Conseil d’Etat in Paris, but also with the European Court of Human Rights (ECHR) in Strasbourg and the UN Human Rights Commission in Geneva.  In the introductory chapter of his short book, Rosen traces our modern secular concept of dignity back to the work of Immanuel Kant, and argues that “dignity is central to modern human rights discourse, the closest that we have to an internationally accepted framework for the normative regulation of political life, and it is embedded in numerous constitutions, international conventions and declarations” (pages 1-2). Leaving aside the question of the genealogy of human rights, and the very novelty, fragility and ambiguity of the world of international human rights norms and standards in which we have found ourselves since the 1970s (recently elegantly and fruitfully explored by Samuel Moyn), the case of poor Mr Wackenheim as Rosen rightly notes “shows that the ubiquity of dignity in current legal discourse masks a great deal of disagreement and sheer confusion” (page 67). For “doesn’t being treated with dignity mean that we should have the right to make our own choices about whether to behave with dignity or not?” asks Rosen (page 69). There are, regretfully, no simple answers to this question. And both national and international law deals with abstractions simply because it can do little other, and this may in fact be the reason why it is so spectacularly difficult to establish legal frameworks applicable to all cases and all eventualities. Kant was of course a product of his time, and his time being one in which racism was the norm rather than the exception as such – in the words of Francisco Bethencourt - Kant “insisted on the hereditary differences on races” (page 257) and may not necessarily have been an enthusiastic supporter of the modern extension of the concept and requirements of human dignity to non-European peoples (a fact I think Rosen skirts a bit too easily over).

‘Haters gonna hate’ holds the adamen. And that is certainly true. But Associate Professor Anne Birgitta Nilsen and other serious and committed scholars in this field deserves our rich credit for advancing our knowledge of hate speech, its texture and functions – and providing us all with ideas and suggestions about how to combat it.

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