Speech crimes

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Speech crimes are certain kinds of speech that are criminalized by promulgated laws or rules. Criminal speech is a direct preemptive restriction on freedom of speech, and the broader concept of freedom of expression.

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Laws vary by country in accordance with the legal principles that form the basis of their system of jurisprudence. Prohibitions on shouting fire in a crowded theater (as a practical joke, not as a warning) are not considered controversial in any country, given the potential for imminent harm.

United States

Definition of criminal speech

Criminal speech is a legal concept that identifies certain kinds of speech as a crime and outside the protection of the First Amendment. In order for a statute that places limits on speech based on its content to be found Constitutional, it must pass strict scrutiny analysis as set forth in United States v. O’Brien (1968). [1] [2]

Reasoning for free speech

In the United States the right to free speech is in the Bill of Rights. Words are expressions of ideas, and allow freedom of individuality. [3] [ non-primary source needed ] To Founding Father Thomas Jefferson, it was of the utmost importance to keep all speech free in order for the truth to emerge and to have a civil society. [4] Jefferson adopted the Lockean ideas of “inalienable rights to life, liberty, and pursuit of property” but emphasized that “man must give up some of his freedom to secure civility in the government, and if the government violates its duties then man has the power to revolt through expression.″ [5]

Case law defines what constitutes criminal speech in the United States. The following are types of non-protected speech:

  1. Threats – speech that “encompass(es) those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat." [6] This is similar to the concept that “true threats” are not protected under the First Amendment.
  2. Incitement to Violence – set forth by the court in the case Brandenberg v. Ohio (1969). In this case, the Court found that the First Amendment did “not permit a State to forbid or proscribe advocacy ... except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [7] The speaker must have intended for incitement to result. This overruled the previously held "clear and present danger" test in Schenck v. United States (1919). [8] The incitement to violence test is usually used when questioning the legal validity of hate speech.
  3. Defamation – as set forth in New York Times v. Sullivan (1964), occurs when one publishes material, claiming its validity, that harms or maligns one’s character or reputation. An actual malice requirement must be proven for a public official to seek damages as a result of defamation. When defamation is in written word, it is called libel; when spoken, it is slander.
  4. Obscenity – speech that meets the following criteria is considered obscene and can result in criminal sanctions if any of the following are true: [9]
(a) 'the average person, applying contemporary community standards' would find that the work, taken as a whole appeals to the prurient interest;
(b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
(c) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Germany

The relevant portions of the German Constitution that protect speech are Articles 1 and 5 of German Basic Law. Article 5 states, “(I) Everyone shall have the right freely to express and disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship. (II) These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth, and by the right to inviolability of personal honor. (III) Art and science, research and teaching shall be free. Freedom of teaching shall not absolve one from loyalty to the Constitution.” [10]

Speech can be limited as long as it is in a sense proportional to the right it is protecting - this emphasizes the Courts’ belief that “prioritizes personal liberty over government regulation.” [11] The proportionality test is as follows: “…the Court must be satisfied by the following elements: (i) the means used by the government (i.e. regulation or prohibition) are suitable to further a legitimate objective of governmental action, (ii) there is no equally effective but less restrictive means available to serve the same public purpose, and (iii) there is an appropriate, defensible relationship between the importance of the public good to be achieved and the intrusion upon the otherwise protected right.” [11]

Articles 130 and 131

The German Criminal Code expands punishment from civil liability to criminal punishment and imprisonment if Articles 130 and 131 are violated. These articles ban hate speech ("Hassrede", legal term: Volksverhetzung).

Under Article 130, hate speech is criminalized if it could lead to incitement of violence, referring specifically to speech or writings that insult human dignity. Punishment is three months to five years imprisonment. This is the code that criminalizes Holocaust denial. [12]

Article 131 extends punishment to those who disseminate, post publicly, or show to youth, renditions of senseless violence or violence that is deemed inhuman. [13]

France

The parts of the French Constitution that affect speech are Articles Five and Eleven of the Declaration of the Rights of Man and of the Citizen. "Article 5: Law can only prohibit such action as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law. Article 11: The free communication of thoughts and opinions is one of the most precious rights of man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law." [14]

Article 34 of the Constitution grants the Legislature the authority to determine conditions under which freedom of speech may be exercised.

Criticism of monarchy and government

Countries vary on their treatment of freedom of expression. Some countries consider criticism of royalty and criticism of government as criminal speech.

In Thailand, under Article 112 of the Thai criminal code, anyone can file a complaint against anyone else who "allegedly defames, insults or threatens the king, the queen, the heir-apparent or the regent" and the police are obligated to investigate. Prosecution by the courts can result in jail sentences of three to 15 years. [16]

In Cambodia, Jordan, Kuwait, and Bahrain, criticism of royalty and government are considered criminal speech, and are prosecutable (including prison sentencing) under the law. [17]

See also

Related Research Articles

A hate crime is crime where a perpetrator targets a victim because of their physical appearance or perceived membership of a certain social group.

Hate speech is a term with varied meaning and has no single, consistent definition. It is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". The Encyclopedia of the American Constitution states that hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation". There is no single definition of what constitutes "hate" or "disparagement". Legal definitions of hate speech vary from country to country.

<span class="mw-page-title-main">Defamation</span> Any communication that can injure a third partys reputation

Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions that are falsifiable, and can extend to concepts that are more abstract than reputation – like dignity and honour. In the English-speaking world, the law of defamation traditionally distinguishes between libel and slander. It is treated as a civil wrong, as a criminal offence, or both.

<span class="mw-page-title-main">International Covenant on Civil and Political Rights</span> Treaty adopted by United Nations General Assembly in 1965

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. It was adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966 and entered into force on 23 March 1976 after its thirty-fifth ratification or accession. As of June 2024, the Covenant has 174 parties and six more signatories without ratification, most notably the People's Republic of China and Cuba; North Korea is the only state that has tried to withdraw.

<span class="mw-page-title-main">Fighting words</span> Speech or writing intended to incite hatred or violence

Fighting words are spoken words directed to the person of the hearer which would have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace.

Prior restraint is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship that establishes general subject matter restrictions and reviews a particular instance of expression only after the expression has taken place.

Volksverhetzung, in English "incitement to hatred", "incitement of popular hatred", "incitement of the masses", or "instigation of the people", is a concept in German criminal law that refers to incitement to hatred against segments of the population and refers to calls for violent or arbitrary measures against them, including assaults against the human dignity of others by insulting, maliciously maligning, or defaming segments of the population.

Incitement to ethnic or racial hatred is a crime under the laws of several countries.

<span class="mw-page-title-main">Legality of Holocaust denial</span>

Between 1941 and 1945, the government of Nazi Germany perpetrated the Holocaust: a large-scale industrialised genocide in which approximately six million Jews were systematically murdered throughout German-occupied Europe. Since World War II, several countries have criminalised Holocaust denial—the assertion by antisemites that the genocide was fabricated or has been exaggerated. Currently, 17 European countries, along with Israel and Canada, have laws in place that cover Holocaust denial as a punishable offence. Many countries also have broader laws that criminalise genocide denial as a whole, including that of the Holocaust. Among the countries that have banned Holocaust denial, Russia, Austria, Germany, Hungary, Poland, and Romania have also banned Nazi symbols. Additionally, any expression of genocide justification is also a criminal offence in several countries, as is any attempt to portray Nazism in a positive light.

The Constitution of India provides the right to freedom, given in article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the freedom of speech and expression, as one of its six freedoms.

<span class="mw-page-title-main">Freedom of speech by country</span>

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless, the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms and there are different approaches to issues such as hate speech, obscenity, and defamation laws.

<span class="mw-page-title-main">Blasphemy law</span> Law prohibiting blasphemy

A blasphemy law is a law prohibiting blasphemy, which is the act of insulting or showing contempt or lack of reverence to a deity, or sacred objects, or toward something considered sacred or inviolable. According to Pew Research Center, about a quarter of the world's countries and territories (26%) had anti-blasphemy laws or policies as of 2014.

The hate speech laws in France are matters of both civil law and criminal law. Those laws protect individuals and groups from being defamed or insulted because they belong or do not belong, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, a sexual orientation, or a gender identity or because they have a handicap. The laws forbid any communication which is intended to incite discrimination against, hatred of, or harm to, anyone because of his belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, a sexual orientation, or a gender identity, or because he or she has a handicap.

<span class="mw-page-title-main">Article 14 of the Constitution of Singapore</span>

Article 14 of the Constitution of the Republic of Singapore, specifically Article 14(1), guarantees to Singapore citizens the rights to freedom of speech and expression, peaceful assembly without arms, and association. However, the enjoyment of these rights may be restricted by laws imposed by the Parliament of Singapore on the grounds stated in Article 14(2) of the Constitution.

<span class="mw-page-title-main">Freedom of expression in Canada</span>

Freedom of expression in Canada is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms; however, in practice the Charter permits the government to enforce "reasonable" limits censoring speech. Hate speech, obscenity, and defamation are common categories of restricted speech in Canada.

<span class="mw-page-title-main">United States free speech exceptions</span> Categories of free speech not protected by the First Amendment

In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.

Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.

Online hate speech is a type of speech that takes place online with the purpose of attacking a person or a group based on their race, religion, ethnic origin, sexual orientation, disability, and/or gender. Online hate speech is not easily defined, but can be recognized by the degrading or dehumanizing function it serves.

<span class="mw-page-title-main">Incitement to terrorism</span> Category in some national legal systems

Incitement to terrorism is a category in some national legal systems which may criminalize direct encouragement of acts of violence or praise for proscribed terrorist organizations. It was also prohibited by United Nations Security Council Resolution 1624 in 2005.

Hate speech is public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation. Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation".

References

  1. ↑ United States v. O'Brien, 391 U.S. 367 (1968)
  2. ↑ "3.3 Freedom of Speech". Criminal Law. University of Minnesota Libraries Publishing edition, 2015. This edition adapted from a work originally produced in 2010 by a publisher who has requested that it not receive attribution. 17 December 2015. Retrieved 23 January 2021.
  3. ↑ Locke, John (1690). An Essay Concerning Human Understanding . England. We should have great many fewer disputes in the world if only words were taken for what they are, the signs of our ideas only, and not for things themselves.
  4. ↑ Jefferson, T. (January 6, 1816). Letter from Thomas Jefferson to Colonel Charles Yancey.
  5. ↑ M, Kahn (October 2002). "Public Interest Law: The Origination and Early Development of Free Speech in the United States: A Brief Overview". Florida Bar Journal. 76 (71).
  6. ↑ Virginia v. Black, 538 U.S 343 (2003)
  7. ↑ Brandenberg v. Ohio, 395 U.S. 444 (1969)
  8. ↑ Schenck v. United States, 249 U.S. 47, (1919)
  9. ↑ Miller v. California , 413 U.S. 15, (1973)
  10. ↑ German Basic Law, Art. 5
  11. 1 2 "Home". Dipartimento di Giurisprudenza (in Italian). p. 13. Retrieved 2021-01-23.
  12. ↑ J. Transnational Law and Policy; Vol. 12:2, p. 258
  13. ↑ "Criminal Code (Strafgesetzbuch, StGB)". www.iuscomp.org.
  14. ↑ Declaration of the Rights of Man Art. 5 and 11 (1789)
  15. ↑ Yahoo! Inc. v. La Lingue Contre Racisme et L’Antisemitisme- 433 F.3d 1199, 1202 (Cal. 2006)
  16. ↑ Parpart, Erich (26 March 2018). "Lese majeste law and reality". Bangkok Post. Bangkok Post Public Company Limited. Retrieved 28 January 2021.
  17. ↑ "Lèse Majesté: Watching what you say (and type) abroad". www.osac.gov. OSAC, US Department of State. 29 August 2019. Retrieved 28 January 2021.

Further reading

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