Judit BayerPolitical speech is free. At the same time, one should be aware that it transmits powerful messages to people who feel represented. Political correctness prevented the dissemination of racist allegations in the second half of the 20th century, and beyond. In recent decades, this kind of political correctness has been labelled by populistic politicians as the tyranny of a corrupt elite who claim to represent the "real" opinion of the majority. They also suggest that intolerant views have been suppressed through the spiral of silence – even though the contrary: denigrating speech on minorities is known to silence and intimidate those. My hypothesis is that the representation of extremist views by persons in the political power grows the popularity of those views.
Several pressing questions are raised here: (1) How can our democracies treat the growing popularity of intolerance, which – if becoming majority – would tear our democracies apart? (2) What constitutional legal tools are available to prevent these damaging views becoming dominant opinions? In the frames of this writing, I deal only with the second question.
1. Theory of free speech in a changing information environment
Background
Hate speech rules are often revisited in legal literature in search of appropriate regulation under the changing political and informational circumstances. This writing aims at offering a new perspective on the regulation of hate speech.
There is a well-known difference between the liberal approach of the United States and the European, more restrictive, regulations. But, even in European democracies, speech and especially political speech is widely protected, and even shocking or disturbing ideas deserve constitutional protection, because the challenge that they pose for the ‘established truth’ is seen as beneficial for a sound and vivid public discourse.
Certain types of hateful speech are ordered to be sanctionable by international conventions such as the ICCPR, ICERD, the Protocol on Racism and Xenophobia. Also, the European Court of Human Rights systematically rejects applications which claim protection for racist content, either qualifying them as inadmissible, or relying on Article 17 of the European Convention on Human Rights that denies protection for any action aimed at the destruction of the rights included in the Convention.
In particular, incitement to hatred is criminalised by the Genocide Convention's Article III. c.: Direct and public incitement to commit genocide. However, its narrow formulation applies in wartime only, and only in the event a causal relation between the racial incitement and the action of genocide can be established. Perpetrators have been indicted by international courts in relation to the war in Rwanda and Yugoslavia (not to mention the preceding Nuremberg trial here).
The social environment
In search of the factors explaining the appropriateness of the liberal approach in certain states, one finds a widely held presumption that society responds to hate speech with an adequately negative social reaction. It is believed that the publicly held dominant opinions, represented by the mainstream media and public policies, would condemn racist, xenophobic, intolerant speech, and that those who express such will get labelled as racist and intolerant. It is held that a strong and open society should be able to tolerate hate speech, while also keep it isolated with methods other than law: using the social consequences of the morally wrong actions such as loathing, ridicule and isolation from power and resources. In stable communities a person who hates is viewed as malignant by the community’s members. This is how an open, tolerant society should regard hate speech: neither prohibiting, nor supporting it, but keeping it unheeded. A strong civil society would apply the moral censorship to keep hatred between barriers. As Heinze argued, long-standing, stable and prosperous democracies can "afford" liberal free speech because they are adequately equipped to protect vulnerable groups from ensuing violence or discrimination. In other words, it has been presumed that hate speech remains a minority opinion, a social extremity, which needs to be protected against the tyranny of the majority. Under these circumstances, the said opinion has minor chances of becoming dominant in society.
However, this situation becomes dramatically different when xenophobia, racism, homophobia, and mysogyny are regularly voiced by people in senior political positions. It has been generally accepted that persons in authority make higher impact, and that when these express hate speech, their speech is more likely to lead to discrimination. Barendt writes: "There may also be problems in evaluating the impact of hate speech, given that it is inevitably expressed in a society where a variety of attitudes to racial questions are held and where the government generally discourages or even outlaws racially (and religiously and other) discriminatory practices (emphasis added).
The presumption that hate speech is inevitably expressed in a society where government generally discourages discriminatory practices seems overly optimistic. Segregation, apartheid and genocide happened less than 80 years ago, owing to laws and policies that legalised and encouraged discriminatory practices. Of course, discriminating policies and hate speech are not to be mixed, but hate speech by people in power has the potential to turn into policy. The Pyramid of Hate has taught us that if intolerant behaviours at the lower level of the pyramid are accepted as normal, they open the door for the next level of discriminative behaviour. (See more on this below under "The authority factor".)
The internet's effect on public discourse
The transforming informational environment brought about a hyperplurality of all opinions: everything can be published and accessed on interactive online platforms. The ranking factors in this new information ecosystem are radically different from the "classic" media system which applied social filtering by way of entry barriers: owners, publishers and editors filtered all content before it reached the public. In retrospect, it is now clear that that was an elitist system which enforced the moral values of the upper-middle-class white males, with the downsides of being exclusive of social minorities. However, in lack of this social filtering, racism, homophobia, etc., are not only published, but also becoming part of the mainstream. The marketplace of ideas gives room to all kind of ideas, however, just like normal marketplaces, the demand can be influenced by marketing campaigns. The new niche in the political market was recognised by populists who embraced the rhetoric, and gained cheap votes in a race to the bottom, fuelling the fears and instincts of people. Their political success appears to legitimise the intolerant views and further blow their popularity.
2. Evidenced effects of hate speech
The effect of media and communication messages has been widely researched, with very different conclusions. Prevailing theories considered the effect of media being subject to many other factors, such as the effect of the direct environment, or the frequency of consumption (two-step flow theory, or the cultivation theory). These also imply that the authoritativeness of the source, as well as the diversity of the consumed content also influence the potential effect. These have particular importance in authoritarian states where a hegemonic state media carries the messages of the charismatic leader, and they are not countered by alternative views. Whereas, most of those research which suggested that media have little impact on public opinion and political behaviour, was conducted in stable and plural democracies.
Historical evidence also shows that hate speech expressed by the ruling elite, or by a charismatic ruling figure, may have an effect on the behaviour of individuals. A research paper from Harvard (also published in a peer-reviewed journal) analysed Rwandan radio broadcasts that called for the extermination of the Tutsi minority. It found that civil participation in the killings and coordinated military violence were both higher in the areas covered by the broadcasts. The International Criminal Tribunal for Rwanda established link between the genocide and the radio broadcasts, and convicted three media executives for the role their newspaper and radio played in the genocide in 1994.
All other cases are less evidenced. But, for example, a group of young men in Hungary attacked houses of Roma people 9 times during 2008 and 2009 with the intention to murder the inhabitants and intimidate others, and killed 6 persons, including a small child, and wounded several more. During the trial, the main perpetrator referred to a specific television reportage created by a well-known journalist who is known for regularly publishing racist hate speech which imply, or openly call upon, violent behaviour against the Roma. He and his writings are held in such a high esteem by Prime Minister Viktor Orbán that he was awarded a highest merit "Knights Cross" in 2016. The social reaction is telling: 66 scientists and artists who previously received the same award returned their awards back to the president.
Prime Minister Viktor Orbán has been using a revolutionist and populist rhetoric throughout his political career, first against the Soviet troops in 1989, and then, since 2006 against various social groups, in an attempt to polarise society. Since 2015, his populist rhetoric spearheaded against migrants, as anti-migrant propaganda has been distributed on public service television and thousands of outdoor posters throughout the country. Persons who looked like a "migrant" either for their skin tone, or headwear, have been harrassed, intimidated, and bullied in Hungary in recent years on several occasions. Xenophobia has significantly grown in Hungary, and is the highest within the EU Member States, although migrants did not enter the country in large numbers. While the causal link is always difficult to prove, one thing is sure: the lack of officially recognised hate crimes does not prove the low level of racially motivated crimes in Hungary.
When Donald Trump tweeted in July 2019 referring to four congresswomen that they should go back where they came from, a few days later, on July 17th, the crowd had chanted "send her back" at a re-election rally, referring to Ilhan Omar, a muslim congresswoman.
Matteo Salvini in Italy has called for an ethnic census of the Roma, and repeatedly used inciting, racist speech which is believed to have resulted in forced eviction, hate crimes and other forms of intimidation, including personal attacks.
After the Brexit vote, UK police has reported a significant increase – reports vary between 5% and 40% – in hate crimes, compared to the previous ten-year trend of decrease.
3. The authority factor
Marketing and political communication techniques know it very well that an authoritative figure has more impact on consumer choices. If states leaders engage in hate speech, their authority and perceived trustworthiness makes hate speech more acceptable. Frequently repeated authoritative messages have the potential of demolishing moral barriers and of giving a free ticket to racial violence. Eric Barendt in his review appears to acknowledge that governments' actions have a higher impact on the individual rights of people.
While political speech is, and should remain, highly protected, its potentially higher impact has crucial implications in the effect-based regulatory approach of the American jurisprudence as well. Without lowering the threshold, it could be acknowledged, that hate speech, if expressed by senior politicians, inherently has a social effect.
But it also has lessons for European jurisprudence: even if hate speech is prohibited, if the political leadership regularly violates the rules, then there is no real chance that the law can be enforced. Partly because the speech gets institutionalised – for example, through billboards and public service television – and cannot be linked to one individual perpetrator, and governmental authorities cannot be subject to criminal procedures, besides, law-enforcement agencies might be loyal to the government. This climate is also encouraging for individuals to confidently engage in hate speech without the fear of getting prosecuted – after all, they have the President/Government/Parliament or senior politicians behind them. But ordinary people's racist views shared on social media are less likely to generate discrimination or racial violence than popular political figures doing the same. If the ruling elite itself does not respect the written rules, they become "not worth the paper on which they are written". Therefore, national regulation is mainly symbolic: its role is to represent the official position of the state, expressed by the ruling elite. It can give a message that intolerance would not be tolerated, but only if consistently represented by the governing politicians.
In sum, hate speech is dangerous mainly when exercised by the executive: and that is exactly when it cannot be controlled on the national level. Only pre-established norms of the international community could have an effect, if any. The idea is that people of power and authority should have a lower threshold – a stricter prohibition – on exercising hate speech than ordinary citizens, and this should be supervised and enforced by the international community. Clearly, the rules need to be narrow: legitimate discussion about ethnic tensions, migration and other social issues should not be suppressed.
It must be noted that political power which disrespects human rights would also be likely to ignore the values of the international community as well, including their judgements. Such an international standard would be – and has been earlier in history – unable to prevent genocide. But, at the least, it could give strong signals about the moral standards for humanity, for the rest of the states.
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.