Then following up on blibble's question: What is the difference to the UK and other western countries that mostly also have free speech with what looks to me very similar restrictions?
Honest question, like blibble, I don't really understand it either?
The US's first amendment is rather unique amongst Western nations. Basically it says "the government cannot infringe on this inalienable right", that is the government cannot govern speech. Here's the actual language
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The key phrase "or abridging the freedom of speech, or of the press".
As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion. [0] Note, the article doesn't record what the accused actually said. Here's a wikipedia overview of hate speech laws by country [1], though it is wikipedia, so take it with a grain of salt. Here's a somewhat relevant piece from Reason that takes an anti-hate-speech stance [2] where the author details the unconstitutionality of hate speech laws.
"Free speech" as we understand it in the US is unique in the world.
As far as the restrictions at state and federal level, these are considered unconstitutional, and you'll see a large number of them struck down in various courts across the country. Those in power definitely seek to expand their powers and fortunately we have a law that allows the citizenry to push back against that.
Rather than posting a poorly-worded, short-on-facts news story about the guy in Hamilton saying some hate speech, you could cite the actual Canadian Criminal Code which is far more specific and worthy of discussion: https://www.criminal-code.ca/criminal-code-of-canada-section...
Framing it as "Canada jails people for criticizing those of Islamic persuasion" is disingenuous, as if Canada specifically has laws about some specific religion or faith.
Without knowing what was actually said that the courts deemed to be promoting hatred, "Canada jails people for criticizing those of Islamic persuasion" is a valid interpretation. Citing vague laws doesn't make this any more reasonable.
IMO the worthwhile fact to share on an HN thread is "in Canada there are specific laws against inciting hatred through speech etc." and linking that criminal code entry, rather than mentioning and linking a specific news case that we have no real details on. At least the criminal code is a clearly-defined thing we can learn from and internalize, rather than a specific case where the public was not given enough information to make an informed judgement about (as per most news stories, IMO).
Both are important really - the law and how it is interpreted by the courts. That we don't know the details of the case doesn't make it less concerning - on the contrary, media not reporting the relevant facts (in this case, what exactly was said/done) only makes this more concerning. Especially if the lack of reporting is due to fear of running foul of the same censorship laws.
Earlier it was listed "..you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information.."
So where are these exceptions innumerated? Just purely from a technical point of view, why can defrauding be made illegal, but hate speech can not?
It actually seems the number of exceptions is quite limited - so I never understood why they were not spelled out explicitly (like in an subsequent constitutional amendment for instance). It seems to undermine the authority of the bill of rights. The original text makes no provision for exceptions...
It’s not strictly about the words in those exceptions.
In the case of fraud, it’s not the speech itself, it’s the part where someone gives you money (or other consideration) under some agreement or understanding, and doesn’t actually get what was promised. There’s nothing intrinsically wrong with what you promised, it’s your failure to deliver.
Threatening people? The illegal part is not that you used words at them specifically, it’s that you caused them to credibly fear for their life and safety. You could just as well do that without words, just standing outside their place with a baseball bat making menacing gestures. Harassment similarly may use words, but the objectionable part is often subjecting them to your words or actions or presence directly, to cause distress, instead of leaving them alone in peace.
“Hate speech” as a problem generally is about the content of the speech itself. You might wish to convince people that others in a group are bad and worthy of being considered bad. Your audience is typically people like yourself, or third parties who you wish to sway, and if you are in a public place you are mostly not following around an individual to be hated, or telling them you are about to do them violence. (If you do, it may in fact be harassment or intimidation.)
Given that some things that don't use words—for instance, art, money—have been ruled as being considered equivalent to speech for the purposes of First Amendment protections, I don't think the rationale you give there is likely to be the one used to justify the listed exceptions to the First Amendment.
In all the cases listed, the speech in question is being used to directly and (at least usually) intentionally harm or interfere with another person. I believe this is a case where looking to the Framers' intent rather than the strict wording of the amendment is worthwhile in determining how best to apply it. It seems obvious that they did not intend to make all forms of fraud and threats legal with no recourse (and I imagine there is some jurisprudence that cites specifics to this effect).
The specifics have been determined in case law. I'm not a lawyer, so I can't give a more detailed example. I can, however, give some examples (Mass Media Law at Utah State comes bubbling back into my mind, what a fun class).
Yelling "fire" in a crowded theater, for example [0]. Another comment in this thread talks about the "clear and present danger" doctrine that came from the case. That case was followed by the Brandenburg v. Ohio [2] case in 1969, which instituted the current methodology used for determining what is "allowed" speech. That rule/methodology is called the "imminent lawless action" rule.
Yeah, I'm not a lawyer but the system seems honestly nonsensical. They found the law inconvenient, so the court just effectively added a "clear and present danger" clause to the law. If there were problems with people abusing their freedom of speech, then you'd think the natural response would be to amended the bill of rights - and not just a bunch of unelected judges dreaming up something that seems "reasonable"
I honestly can't speak to "reasonable", but this format of jurisprudence has been common for the better part of 4000 years (see Jewish law and case law that pops up in the Bible's old testament, especially the tanach).
The biggest problem with the trope is that it plants in people's heads the idea that there was EVER a Supreme Court case where the defendant was accused of yelling "fire!" in a crowded theater.
In reality, the phrase was an analogy used to justify the conviction of a man who committed the heinous crime of… making and distributing leaflets opposing the draft in World War I. So for all the high minded rhetoric in the First Amendment, it may not provide all that much protection if your speech inconveniences the government sufficiently.
One might also be tempted to draw inferences from the fact that Schenk, the man whose speech was considered not worth protecting, was a socialist pacifist, while Brandenburg, whose free speech was considered more worthy of protection, was a KKK leader promoting violence against Blacks and Jews. In the US, protecting the civil rights of Nazis has become a litmus test of civic virtue across the political spectrum. Unfortunately, that protection is extended far less vigorously and consistently to other political views.
Case law doesn’t exist in the United States of America.
You might be thinking about medieval England, or ancient Persia, where a king or judge’s word becomes law.
In the USA, people are judged individually and are equal before the law.
One exception, that is traditional, but not enumerated in law, is that the Supreme Court can strike down a law that it deems unconstitutional, but may not amend or make new laws itself. Lower courts havee Ed no such power.
First, every court of appeal can strike down a law as unconstitutional. The Supreme Court is only special in that there is no further appeal.
Second, case law absolutely determines the interpretation of each text, and each court is mildly bound by its own precendent (via stare decisis), and completely bound by the precedent of superior courts.
Third, there is no tension between these facts and people being judged individually and being equal before the law. The law must (in principle) be applied equally to everyone.
Wow, American exceptionalism claims have now gone so farad to claim that freedom of speech is unique to America!
Not even the historical claim holds, as constitutional protections for free speech in France and Sweden predate the American constitution.
> For example, Canada jails people for criticizing those of Islamic persuasion
He was arrested, presented to court, and acquited. Therefore he was not "jailed". Also: the charge was inciting/organising a hate crime, in the wake of a killing of a Muslim father and his 15-year old daughter, not "criticising those of Islamic persuasion".
Could it be possible to illustrate with an example just for clarity? How does this compare to, say, the Netherlands? For example what are things that are possible in the United States that are not possible in the Netherlands? I would assume there are things that are not legal but not penalised in the latter but under certain conditions would be addressed and penalised and there's no way around it, but would like to know of an example just to make it super clear for me. Thanks!
In the US it is legal to advocate hate, such as denying Holocaust or promoting National Socialism or white supremacy. The courts have repeatedly struck down bans on hate speech. Not sure about the Netherlands, but this is illegal in many European countries.
Idk the US specifics but hate speech in Spain is something govt has used to prosecute others in the name of so many things and in so many situations that to me, it means nothing. Just having a negative opinion is "hate speech" if the right person gets annoyed and goes for you.
It is a very powerful tool to shut up adversaries and it is extremely harmful for real opinions and real free speech.
Radiolab has a great episode about how this more broad application of the first amendment sort of came about due to Oliver Wendell Holmes changing his mind about what actually constitutes a "clear and present danger" between two Supreme Court cases in 1919.
Take a person who believes that "there needs to be a country for white people and white people are innately better able to form productive societies". This person would clearly be a white nationalist and a white supremacist, right?
But they may also have no hate towards other ethnicities or desire their deaths. If pressed, they might even say that their vision of a "pure" society isn't worth the deaths of minorities that would come about if they tried to implement it.
I think too often we confuse the stereotypical example with the definition. The stereotypical white supremacist hates minorities, but the definition itself doesn't require it (I know of no surveys that would tell us what proportion of white supremacists match the stereotype).
You can't be a white supremacist without thinking other races are inferior. That's hateful by definition. They are stereotyping an entire race in a negative manner. They are denying the basic humanity of billions for what end? The Third Reich didn't immediately start throwing Jewish people into death chambers. They had to build up to that moment by dehumanizing their victims.
My whole point is that you (and many others) are using a new definition of "hate" which doesn't match the old one. "Hate" used to be an emotion, a feeling, a dislike of something and a wish to see it destroyed.
One can feel superior to something without having any dislike of it or a wish to see it destroyed. I consider myself superior in many respects to the rocks in my back garden, but I neither dislike them nor wish them destroyed.
A supremacist may consider themselves smarter or prettier or taller than some other group, but that does not necessarily mean they want to destroy the other group.
I kind of get your point (i think?) but maybe you shouldn't try to belittle the use of the word "supremacists" in the context of modern language. Try looking up a definition if you are unsure. Maybe you disagree on the definition but that is probably the mainstream one...
At your prompting I've tried to look up a definition, but there doesn't seem to be a commonly accepted one... merely usage where the scope of the terms varies from one source to another.
Any left-wing should be allowed, any right-wing stuff should be denied.
Few exceptions exist on the western side, Spain is probably the most remarkable case. Reason why you wouldn't often hear much about what happens there, unless it is something negative to bash the right-wing people there.
Note that including denying the Holocaust under "advocating hate" is basically making up a new concept and using an existing word (hate) for that concept.
It comes across as very dishonest.
There are people who genuinely think the Holocaust was exaggerated or didn't happen at any substantial scale who bear no ill will to Jews, seeing it simply as a question of historical fact of limited relevance to the modern day.
Denying that a targeted genocide happened or saying it's exaggerated is absolutely hateful. I'm not sure how it's of limited relevance when it's within living memory. When (some) Americans start to chant "The Jews will not replace us!" I think it's very relevant to our modern era.
I would really recommend doing a cursory, bare-minimum reading of the associated Wikipedia page [0] and citations. Plenty of historians revise the events surrounding the Holocaust to provide less biased and more nuanced information. Very different from taking an assumption as fact (the holocaust did not happen) and working backwards from that.
I think, as ever with these things, the name is misleading. It's not "hate". We've no idea what people are feeling. Why do we a) think someone feeling "hate" is enough to suspend speech, and b) think if we want to justify censorship, we can't just say it out loud?
Why not just say "we ban speech that says the Holocaust didn't happen"? Why get it classified as hate and then because somehow hate is censorable get it autocensored? It seems somehow disingenuous.
Of course there is. People might be ignorant. If a kid is just taught that the Holocaust was made up, no hate is required for them to believe it. People need to stop pretending they can divine people's emotions. What matters is their actions.
What does the word "hateful" mean? The old meaning is "full of the emotion of hate". Someone who thinks the Holocaust wasn't real could in theory have no strong feelings about it and think it has no relevance to their lives.
It is not required by definition that Holocaust denial is hateful (using traditional definition of the word "hate"). Nor is it required by human psychology (for example, you could have someone who read an unfortunate sampling of books as a child and took "disbelieve anything the victors of a war say about their enemies" as gospel and never got educated on the details).
My goodness. That raises questions. I hope you are merely naive.
"I don't hate them! I just think they got a bit worked up over a few arrests. They're too sensitive. I don't blame them for it, but when you deal with them you've got to remember they can be prone to distorting the truth."
> The US's first amendment is rather unique amongst Western nations.
> As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion.
The US is not unique in having constitutional protections of free speech. For example part of the Canadian constitution is the "Canadian Charter of Rights and Freedoms", which forms part of the Constitution Act 1982. Section 2 of which says "Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;" – that's essentially saying the same thing as the US First Amendment.
In Europe, article 9 of the European Convention on Human Rights (ECHR) protects "Freedom of thought, conscience and religion". The Convention is quasi-constitutional in nature – while it is an international treaty whose members are in theory free to leave at any time, in practice quitting it is impossible for many European countries–membership in the ECHR is a requirement for EU membership, so no EU country is going to get away with denouncing it. And many national constitutions have equivalent provisions, such as articles 4 and 5 of the Basic Law of Germany.
One difference – the text of the US constitution doesn't contain any exceptions to the 1st Amendment, whereas the Canadian constitution, the ECHR, Germany's Basic Law, etc, explicitly state that freedom of speech/etc can be subject to limitations. However, in practice, even though the US constitution never explicitly says that the 1st Amendment has exceptions, the Supreme Court has always held that it does, although the scope of these exceptions has varied due to the evolving opinions of the Supreme Court – for the first century of the US's existence, SCOTUS allowed sweeping exceptions to the 1st Amendment; in the 20th century, it narrowed the allowed exceptions significantly, and developed some highly complex case law on which exceptions are allowed.
The real difference is actually nothing to do with the text itself, it is all about case law – since the 20th century, SCOTUS has been very strict in only allowing quite limited exceptions to the 1st Amendment. Courts in Canada, Europe, etc, have always been much more liberal in allowing exceptions to the right of free speech. Now, possibly the difference between a text which provides no explicit exceptions versus a text which does may have influenced that, but I don't think it was decisive. It was not historically inevitable that SCOTUS would start interpreting the 1st Amendment much more strictly in the 20th century, if different justices had been appointed, it easily could have decided to stick with its 19th century case law which allowed greater exceptions to it. Conversely, even though Canadian/European/etc texts explicitly mention exceptions, their courts could have chosen to interpret those explicit exceptions far more narrowly, producing a result much closer to that of the US, if they had wished to do so.
Similarly, in Australia it is generally much easier to win a defamation case than in the US.
However, there is one interesting difference – under Australia's uniform national defamation law (adopted in 2005), corporations cannot sue for defamation. (There is an exception for small businesses, with less than 10 employees.) So, the recent Dominion vs Fox News lawsuit would have been impossible in Australia.
Hm, not quite sure I can follow the _unique_ part.
E.g. german constitution is quite similar:
```
Article 5
[Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.
(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
```
(2) notes that there _are_ limits, but if I understood the concept of gag orders and also wolverine876's answer correct, thats the same for the US:
```
Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence,
```
In Germany Nazi symbols are strictly banned but you are allowed to name soldiers killers. My hunch is that calling a veteran or active member of the armed forces of the US a killer would not go so well and might very well end in a slander suit.
When you free speech is restricted still seems pretty arbitrary to me [shrug].
You can call US service members killers all you want. In fact "baby killer" is a relatively common refrain during protests aimed at the military. Maybe in the UK with their asinine slander laws you'd have to be more quiet but that's pretty clearly first amendment protected territory in the US.
SLAPP suits come from massive sources of capital which have enough counsel either on retainer or simply have enough money that they don't miss ~$50k on a whim to get back at someone who they think besmirched them that one time. That doesn't really apply to US service members.
SLAPP suits are filed by the defendant, ie the person who said the thing.
They're a response to being sued. If a lawsuit is clearly bogus, you can get it thrown out extremely quickly and the other side usually has to pay your attorneys.
Not all states have them and not all states that have them, have good ones.
> Strategic lawsuits against public participation, or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Anti-SLAPP suits are filed by the person who said the thing. And yes some states have good anti-slapp protections but that means the rest of Americans don’t enjoy that freedom.
You could get sued, but you would almost certainly win, as evidenced by the Westboro Baptist Church who won a Supreme Court case after being sued for witnessing their Christian faith with messages like "Thank God for Dead Soldiers" and "You Are Going to Hell" at a soldier's funeral:
“Police say the man targeted people on social media and promoted hatred against them after an attack in London, Ont., in June, where four members of a family were killed.”
Does that sound like criticism to you? It reads like harassment to me.
I don't know what the man said, only what the authorities reported. This is part of the danger of "hate speech" laws; if speech is deemed dangerous, discourse can be hidden behind public safety concerns and then wholly dismissed. It is then left to those who police speech to determine what is acceptable public discourse and what is not.
In New Zealand where we don't have a specific constitution or amendments we have a set a laws ^1 that end up in the same place.
An example is libel, which both countries have laws against. In NZ such laws are debated in parliament and voted on just as in the US. However in the US there was an additional objection based on it violating the first amendment but then the law was made anyway so it seems politicians in the US can make laws that override amendments in specific situations. The US also has their Supreme Court which seems to play a far more active role than NZ's and also more powerful in that it can creates precedents in the interpretation of laws for example allowing students to wear items of symbolic protest in school.
^1 In 1990 we got a law called the Bill of Rights Act which included freedom of expression.
Honest question, like blibble, I don't really understand it either?