Addressing «Lawful» Hate Speech ELSA Conference Ronald Craig 1

Why Talk about «Lawful» Hate Speech? (Non-criminalizable hate speech) Criminalizable hate speech only involves the very tip of the iceberg Hate speech below the threshold of criminal statutes causes great harm to society 2

Alternative Ways to Address Hate Speech We need the criminal route as a mechanism of last resort for the worst cases Criminal route is extremely limited and ineffective in addressing the larger problem See parallel to the historical development of how we address discrimination and promote equality 3

Development of Work for Equality ? Criminal Provisions Prohibition against Discrimination Positive Duties (Total Equality Management ?) Focus Discriminatory intentDiscriminatory effect or intent Barriers to equality and risk areas Action Criminal finesPolicy on non- discrimination and against prejudice Systematic processes for development and improvement Measure ment Number of reported criminal offenses Number of discrimination cases Fairer distribution of advantages and disadvantages. Representativity Respon sibility Prosecution authorities Personnel departmentManagers and employees 4

We Need Alternatives to Criminal Law I am not suggesting new laws (civil or criminal) to curb or restrict the freedom to express «lawful» hate speech. I am using this parallel to show that we did not get far addressing discrimination by way of criminal laws, and we won’t get far addressing hate speech predominantly by way of criminal laws. 5

Definition Hate speech is defined as bias-motivated, hostile, malicious speech aimed at a person or a group of people because of some of their actual or perceived innate characteristics. …[T]hose characteristics … include gender, race, religion, ethnicity, color, national origin, disability or sexual orientation. (Raphael Cohen-Amalgor, (2011) «Fighting Hate and Bigotry on the Internet, Policy and Internet, Vol. 3(3)) 6

An Unfortunate Approach to Hate Speech «The Troll will Disintegrate» The Norwegian Law Commission on Freedom of Expression in 1999 stated its principle standpoint on hate speech to be: Hate speech will, when expressed, be aired, cleaned and made decent through discussion and criticism. In order for this to happen the hate speech must get expressed. The criminal law provision is seen as a last bastion against the worse kinds of cases. (NOU 1999: 27, page 203) 7

The Government adopts «The Troll will Disintegrate» Approach In 2003 the Norwegian Government agreed with this principled position in addressing hate speech. (St. meld. nr. 26 ( ), page 72) «Discriminatory attitudes should as far as possible be countered by the undesirable speech being expressed and reacted to in the public sphere.» This government position may help to explain why Norway does not have a well-designed nor comprehensive strategy to deal with the negative effects of hate speech. 8

Is there any evidence that the Troll will Disintegrate in the sun? There is nothing to suggest that there is any truth to the proposition that hate speech, when uttered, gets cleansed and made decent through discussion and criticism. No research supports this! 9

The Research Available Gordon Allport, The Nature of Prejudice (1954) John Dovidio (ed.),On the Nature of Prejudice: Fifty Years After Allport (2005) 10

The Harm: Hate speech: Promotes exclusion from society and greater polarization, which breaks down social cohesion Produces a «chilling effect» to participation in our democratic system Both reflects and perpetuates bias (Not only a sympton; also a carrier of disease. Hate speech leads to more hate speech) Devalues the target outgroups Produces anxiety and distress among target groups Strips people of their dignity 11

The Harm: Hate speech: (# 2) Can trigger discrimination Can produce a culture of fear towards outgroups without rational justification Can lead to violence 12

National strategies to Counter the Social Harm of Hate Speech Focus on hate speech and prejudice in school curriculum and course materials Allocate monies to research on the prevalence and social harms of hate speech (so as to make the harms visible) and mechanisms to reduce harms Encourage media self-regulation, eg. through use of moderators, full-name policies, Include the social harms of hate speech and group stigmatization in the ethics curriculum in the education of journalists 13

National strategies to Counter the Social Harm of Hate Speech (# 2) Enact a law giving all public authorities (state, regional and local) a positive duty to actively promote community cohesion in their roles as policy-makers, service-providers and budget-maker Initiate campaigns of awareness to counter hate speech Support economically arenas for the interaction of different social groups. (Such arenas encourage the exchange of ideas and breakdown stereotypes and prejudice) 14

Afterword Despite my suggestions for a strategy …. It is the Government and its agencies that has the responsibility – in dialogue with civil society – to explore the best ways to address the harms of hate speech. 15

The Experience of NRK Moderators The experience of the comment moderators at NRK is that without moderation, the comment section gets sidetracked or hijacked by hate speech proponents. The ordinary comment rules of NRK are made for keeping the quality and flow of the conversation – rules such as full- name policy, off-topic comment get deleted, unreasonable attacks on the author get deleted. These rules usually delete the vast majority of hate speech. One does not even have to use the special hate speech rule. RC comment: This means it is in the business interest of media publishers to have such rules. 16

Afterword: Guidance to Media Publishers Many media publishers experience that the comment section has a higher quality and flow of conversation when full names are required, attempts to sidetrack the topic are avoided, and when discourse ethics are insisted upon. You have the right as a business decision-maker to require all who submit comments to use their full names You have the right to delete all comments which attempt to sidetrack or hijack the topic You have a right to delete all comments that unreasonably attack the author of the article You have the right to delete unlawful hate speech We encourage you to spread knowledge of these rights to all actors in the media industry 17