EU Criminalizes Racist and Xenophobic Speech (Updated)

One of the topics I cover in my first-year Law & Society class is the right to freedom of expression. Because New Zealand does not have a written constitution, that right is guaranteed by statute — the Bill of Rights Act 1990 (BORA). New Zealand courts take freedom of expression seriously, but there is no question that BORA protects that right less strongly than the First Amendment does, because BORA specifically permits “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Not surprisingly, the limit my students always want to talk about is hate speech. They are shocked and horrified when I tell them about U.S. cases like R.A.V. v. City of St. Paul; in their view, it seems self-evident that it is reasonable to criminalize hate speech, which (admittedly) has no redeeming value. I do my best to defend a much stronger — and very American — version of freedom of expression, but never to any avail. On my last final, 139 of 140 students defended making hate speech criminal.

I can’t help but think about that cultural divide when I read European reactions to the European Union’s recent decision to criminalize racism and xenophobia. The Council Framework Decision requires Member States to punish the following acts with between 1 and 3 years imprisonment:

Article 1
Offences concerning racism and xenophobia

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable:

(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;

(b) the commission of an act referred to in point a) by public dissemination or distribution of tracts, pictures or other material;

(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

The EU Council sees nothing problematic about making these kinds of speech criminal. the Vice-President of the European Commission’s defense of the Framework is typical: “We are punishing concrete action, not any ideas, we are punishing incitement to hatred in a concrete way or encouraging other people to take concrete (xenophobic) action.” Indeed, many EU Member States and European NGOs believe that the Framework does not go far enough, describing it as “weak” and “without any substantial intent to provide strengthened protections for those who experience racist crime and violence in Europe.”

Does the Framework punish only “concrete action, not any ideas”? The answer might be “yes” for the first two provisions, whose use of the term “incitement” seems to presuppose that the defendant intended to incite the violence or hatred. But it is clearly not true for the third and fourth provisions, which do not contain any such requirement. Those provisions criminalize racist or xenophobic speech that is “carried out in a manner likely to incite to violence or hatred,” not that is “carried out in a manner intended to incite to violence or hatred.” That difference is critical, because it foregrounds the fact that the Framework criminalizes speech that is considered to be racist or xenophobic even if the speaker had no desire to incite others to violence or hatred, and even if the speaker did not know that it was likely to do so. It is thus completely possible, perhaps even likely, that artists, cartoonists, filmmakers, novelists, and the like who traffic in controversial ideas will be convicted of hate crimes simply because a court concludes that their ideas had the potential to cause others — unknown others, others to whom their ideas were in no way specifically directed — to lash out at particular protected groups.

The absence of any intent requirement, it is important to note, distinguishes the Framework’s approach to racist or xenophobic speech from the ICTR’s understanding of incitement to genocide. Here is the Trial Chamber in Akayesu:

The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging. That is to say that the person who is inciting to commit genocide must have himself the specific intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

The ICTR’s limitation is sound. By criminalizing speech that is likely but not intended to incite others, the Framework essentially reads a powerful “heckler’s veto” into the criminal law, prohibiting a speaker (under penalty of imprisonment) from discussing controversial ideas that might inflame certain members of the public to violence or hatred regardless of the speaker’s motivation.

This fears will no doubt strike some as unrealistic or overblown. Perhaps courts will prove judicious in their approach to hate crimes, refusing to convict speakers who use controversial ideas to critique violence and hatred, not to promote them. I have no reason to believe otherwise. But that isn’t the issue. The real problem with the Framework’s approach to racist and xenophobic speech is the profoundly chilling effect it will almost certainly have on such speakers. What rational artist or filmmaker will risk pushing the ideological envelope if she knows that the criminality of her speech depends not on her intent but on the (unpredictable) reactions of others to it?

In the end, those who support a robust right of freedom of expression have only this to console them: it could have been worse. The current Framework criminalizes far less speech than many EU Member States and European NGOs had hoped. The original 2001 proposal considered by the EU Council went much further, making the following actions, inter alia, criminal:

(c) public condoning for a racist or xenophobic purpose of crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court;

(d) public denial or trivialisation of the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 April 1945 in a manner liable to disturb the public peace;

(e) public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia.

The 2001 proposal would have criminalized “pure” speech, because neither (c) nor (e) required any link to hatred or violence, intended, likely, or otherwise. The current Framework is thus far less objectionable — though still illegitimate in the absence of an intent requirement, for all the reasons discussed above.

Responses from our non-American readers would be welcome. Do my concerns reflect my American upbringing, legal and otherwise? If the reactions of my Kiwi students to restrictions on hate speech are any indication, I can’t help but think that they do.

UPDATE: Eugene Volokh has an excellent post on the Framework here. His concerns substantially parallel my own — I guess we Americans have to stick together…

UPDATE 2: For an interesting discussion of the mens rea required by the Framework, see the comments.