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Print This PageEU 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 xenophobia1. 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.
Related Posts
http://opiniojuris.org/2007/04/25/eu-criminalizes-racist-and-xenophobic-speech-updated/
9 Responses
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I have a problem following your legal interpretation of the text. In all cases it is necessary that the conduct is ‘intentional’. So the speaker must intend that condoning the Holocaust, etc. is ‘likely’ to incite violence. Surely artists or filmmakers have lots of scope to express radical views without condoning or denying the Holocaust at all. In cases where the racist or xenophobic comments are more general (points a and b) the threshold, is, as you say initially, higher, requiring a direct incitement to violence — but then you seem to mix up the lower threshold applicable to points c and d with the crimes defined in a and b.
at 11:40 am EST Steve Peers
Also — unlike Eugene Volokh’s blog you don’t quote the various limitations on the obligations to criminalise (although the commentary on that blog then forgot about them). Here they are for your readers to consider:
1(1a). For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting.
1(2). Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court or by a final decision of an international court only.
and furthermore:
Article 7
Constitutional rules and fundamental principles
1. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union.
2. This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to […] fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from […] constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.
at 12:01 pm EST Steve Peers
I have to agree with Steve Peers there, particularly with his first point.
The Framework Decision seems to adopt the style of drafting in which the requirement of intent does not need to be clearly expressed.
This style, apparently absent from instruments defining crimes under international law, can be based on either of two reasons:
(my knowledge here is rather limited, so there may be many more aspects to it, and there are certainly many, many more examples)
- in German law, the Criminal Code provides in s. 15 that all crimes regulated in it include the requirement of intent, unless otherwise stated in the section on a specific offence. The offences defined in the Code from s. 80 onwards can therefore, and do, omit any mention of mens rea, unless the offence is one of negligence, in which case the relevant section must and does say so. By virtue of s. 15 (which reflects constitutional principles of very long standing), intent is simply a default requirement.
- in English law, there is a strong presumption of mens rea, so that intent or knowledge will be required unless Parliament has expressly or by necessary implication said otherwise (see Sweet v. Parsley [1970] AC 132; B (a minor) v. Director of Public Prosecutions [2000] 2 AC 428; R v. K [2001] UKHL 41, [2002] 1 AC 462, para. 17). This is ‘a presumption operating as a constitutional principle, and not easily displaced by a statutory text’ (R v. K, ibid.). Parliament can therefore, like the German legislator, omit any reference to mens rea in the definition of a statutory crime, and still not detract from the requirement of intent or knowledge.
Of course, the ‘constitutional principle’ referred to in K’s case (and by me in my description of s. 15 of the German Criminal Code) is not an arcane aspect of English (or German) law. It says that ‘the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind’ (as one of the authorities quoted in K, Brend v. Wood (1946) 62 TLR 462, put it). This is, it might be said, a necessary consequence of the rule that a punishment should always be commensurate with the guilt of the person to be punished (as to which see, with reference to many international and constitutional instruments, Bowe v. The Queen [2006] UKPC 10, [2006] 1 WLR 1623, paras. 29-31). The EU is therefore as mindful of this point as the two member States to the laws of which I have been able to make reference.
(I do not for a moment suggest that US law falls foul of this principle; if there is no such rule, as Prof. Heller’s reading of the Framework Decision might suggest, it would presumably still comply by putting the requirement of intent in every statutory definition of an offence)
at 2:48 pm EST Tobias Thienel
Of course, this means only in the case of this Framework Decision that an accused must always have known that his statements were likely to incite to violence or hatred. There is not necessarily any requirement that the accused must have had any intention to make a statement likely to do this, and there is certainly no requirement of any intention of the accused to incite to violence or hatred him- or herself.
I would agree that this may be going a bit too far. I would only insist, as Steve Peers did, that the Decision isn’t quite as monstrous as it might appear.
at 2:56 pm EST Tobias Thienel
This was, without much doubt, the most redundant comment I have ever written. I now see that the chapeau of Article 1 includes the word ‘intention’. No need, then, to rely on any form of presumption. My apologies.
at 3:06 pm EST Tobias Thienel
How precisely does one criticise the Statute of the International Criminal Court, especially if one believes it puts undue consideration on an arbitrary ethnic or protected group?
The incitement phrase seems to provide scant protection.
(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.
It would seem that they are making opposition illegal.
at 3:10 pm EST Matthew Gross
Steve and Tobias,
With due respect, I strongly disagree. Regarding Steve’s first point, how does one “intend” something to be “likely to incite violence or hatred”? I can certainly “intend to incite violence or hatred” knowing that the result will be likely, but that is not what the Framework requires. It simply requires (1) “intentional conduct” regarding a prohibited kind of speech and (2) the conduct be “carried out in a manner likely to incite violence or hatred.” The first requirement is a conduct element; the second requirement is a consequence element. The word “intentional” only modifies the conduct element — as it says in the chapeau, “the following intentional conduct is punishable.” Again, the consequence is not conduct; it is a consequence to which the chapeau does not apply.
Tobias seems to recognize the difficulty in reading the Framework to require Steve’s “intent to likely incite violence or hatred.” In his view, “this means only in the case of this Framework Decision that an accused must always have known that his statements were likely to incite to violence or hatred.” But where does the knowledge requirement come from? The Framework does not say “carried out in a manner the speaker knows to be likely to incite to violence or hatred…” Nor is there any justification for reading an implied knowledge requirement into the Framework. This is not the Rome Statute, whose Article 30 clearly states that “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” Nor is it German criminal law, with its section 15. If the Framework contained a similar default provision, it would be reasonable to assume that the speaker has to know violence or hatred are likely to result from her speech. But it does not — a critical point, because numerous common law and civil law jurisdictions do not require knowledge of all consequence elements. Sometimes negligence suffices; other times mens rea is only required (as here) for conduct elements, leaving the perpetrator strictly liable for consequences.
Regarding Steve’s other points. First, Article 1(1a) doesn’t help your case — it hurts it. The Article gives States the right to do away with the “likelihood” test entirely, criminalizing intentional conduct (the speech) that is “carried out in a manner which is threatening, abusive or insulting” even if it is not likely to “incite to violence or hatred.” That’s worse: as long as the court concludes that the manner of the speech is abusive or insulting (prohibiting threats is unobjectionable), the State can criminalize the speech.
Second, Article 1(2) is procedural, not substantive — it does not alter what kinds of racist or xenophobic speech that are criminal under the Framework, it simply allows States to have their national courts (or some kind of an international court) make that determination. The national court is not free to weaken the Framework’s protections, as indicated by Article 3: “1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Articles 1 and 2 is punishable by effective, proportionate and dissuasive criminal penalties.”
Third, it’s true that Article 7 gives States some freedom to avoid the full force of the Framework. It’s reasonable to wonder, though, how many States would have agreed to the Framework if they believed that it was “in contradiction to [their] fundamental principles relating to freedom of association and freedom of expression.”
at 6:19 pm EST Kevin Heller
One additional note: Steve and Tobias’s arguments are also contradicted by the structure of the EU’s 2001 proposal. Here is the relevant provision of Article 4:
Paragraph (f) makes clear that “intentional conduct” in the chapeau refers only to the prohibited speech in question, not to the consequences of that speech. The drafters of the Frameword knew full well how how to require a particular mens rea for a consequence element — by explicitly including the mens rea in the element’s definition. The fact that the current Framework’s “likely to incite to violence or hatred” consequence element does not contain a mens rea requirement is thus compelling evidence that the speaker neither has to intend the violence or hatred to result nor know that it is likely to do so. She must only intend the prohibited speech that “likely” leads to that result.
at 7:26 pm EST Kevin Heller
Professor Heller,
on reflection, I’m embarrassed to say I have to agree. I don’t seem to have my thinking cap on tonight, do I?
Of course, it is patently possible to intend to do something that will or is likely to have a certain result. The intention then is to do something that is described by its consequences.
But the controlling language is not ‘likely to …’, it is ‘carried out in a manner likely to’. This clause does not modify the criminal act, to which the requirement of intent relates, but restricts criminality to one part of the intentional acts covered by the preceding words.
If my knowledge of German criminal law has not left me completely (which it might have done), this is possible even in German law, section 15 or no section 15. It’s called an objective condition of criminality (objektive Bedingung der Strafbarkeit).
Of course, turning again to the Decision, it may be questionable if it is possible as a matter of fact to intentionally condone, deny or grossly trivialise the crimes mentioned in the article without knowing very well that this is likely to incite hatred. Certainly on the facts of the cases of Holocaust denial I have read about, I’m not sure this is a serious possibility. Holocaust denial may be the most arguable case here, but I don’t recall a case in which the denial was not bound up with vicious propaganda.
Also, there might be an argument that it is not enough to incite hatred by the mere statement (condoning, denying or trivialising…), but that the manner of delivery must also be objectionable. But as a strict division between content and delivery, this sounds absurd; the clause seems to be saying that there must be factors additional to the statement that support the finding of an incitement to hatred. It seems to me that any neo-Nazi context would meet this test.
But then, this may be my German outlook (although I would accept that the Decision does not merely copy from German law, which I think regards Holocaust denial generally as an offence against the section prohibiting incitement to hatred against parts of the population [Volksverhetzung]).
Anyway, as another commenter has recently said: first read, then write… Point taken.
at 7:41 pm EST Tobias Thienel