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Choosing Between the State and Social Media as the Arbiter of Decency and Truth
This paper examines the contrasting approaches to regulating hate speech and misinformation in Europe and the U.S., with a focus on the role of social media. Guided by interpretations of Article 10 of the European Convention on Human Rights, European nations maintain latitude to restrict speech harmful to society, including hate speech and misinformation. Conversely, in the U.S., the U.S. Supreme Court's First Amendment jurisprudence places significant burdens on the State's ability to regulate hate speech and misinformation. While hate speech and falsities can cause both individual and social harm, there are deleterious impacts of empowering the State to regulate these ideas. When the State can eliminate hate speech and false ideas from public discourse, society's ability to challenge those ideas is diminished, resulting in indolent public discourse. Moreover, in democratic states, the majority will inevitably define hate speech and truth, and those definitions can change with control of the State. To ensure consistency and legitimacy as control of the State changes, an unfettered marketplace of ideas must be allowed to flourish. The importance of ensuring that unfettered marketplace of ideas has never been more important considering the rise of social media. When the State extends its regulation of hate speech and lies to social media platforms, it exerts control over the locus of the most diverse group of ideas in human history.
Key words: Free Speech, Hate Speech, Regulation, Democracy, Social Media
McKechnie, D. B.: Choosing Between the State and Social Media as the Arbiter of Decency and Truth. Právny obzor, 107, 2024, special issue, pp. 4-20.
https://doi.org/10.31577/pravnyobzor.specialissue.2024.01
Introduction
Democracies face competing interests in a variety of ways. This is nowhere truer than balancing the right to free speech with the State's interest in protecting society. Certainly, in autocracies, there are no limits on suppressing speech when the State identifies ideas it believes will harm society. Democracies, however, respect the fundamental right of citizens to share and receive ideas, even those ideas that are distasteful, offensive, and dangerous. Whether facilitating the search for truth or enabling self-governance, the protection of free speech is vital to a well-functioning democratic state. Nevertheless, every democratic state places some limitations on the freedom of speech when the harm outweighs the benefits to society. This article explores where to strike the balance between protecting free speech and regulating hate speech and lies.
When examining the European and U.S. approaches to this dilemma, two options emerge. The State can either have more latitude or less latitude to regulate hate speech and lies. When considering the impacts of granting the State greater flexibility to regulate speech, two concerns arise. First, the greater the regulation of harmful speech, the greater the likelihood that individuals and society become lax in their ability to evaluate, challenge, and reconsider ideas. Second, as with any State decision, the regulation of hate speech and lies will simply reflect decisions by the governing majority. These concerns are particularly problematic regarding the identification and exclusion of hate speech and lies from the public debate on social media. To be sure, hate speech and lies can proliferate on social media. nevertheless, the same characteristics that allow those ideas to proliferate make social media an unprecedented tool for communication. Social media platforms are the borderless town square where people, including those who dissent from the majority view, can most actively engage in the debate of public issues.
1. Regulating Hate Speech in Europe and the U.S.
The beliefs and ideas expressed on social media platforms are not exceptional when compared with those spoken in the corporeal world. Social media's virtual nature certainly erases the traditional social cues and norms, resulting in less inhibited communication of hateful ideas. Nevertheless, the public discourse in democracies, well before social media, has certainly included hate speech. Whether expressed directly to a person, or about a group of people, hate speech-speech that incites intolerance and disparages people based on their race, religion, sexual orientation, or some other characteristic-has routinely been a source of attempted state regulation.
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The State's authority to regulate hate speech, however, is not consistent across democracies. The European Court of Human Rights has interpreted the European Convention on Human Rights as providing member states with wider latitude to regulate hate speech. The U.S. Supreme Court, conversely, has interpreted the U.S. Constitution in a way that removes all options for the State to regulate hate speech.1.1 Hate Speech and the European Court of Human Rights
Hate speech, in the European and U.S. contexts, has a long history. The rise of the Nazi party in Germany in the early Twentieth Century, for example, relied heavily on the denigration of minorities.
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This National experience with the impacts of dehumanization resulted in the Federal Republic of Germany codifying the recognition of human dignity in its constitution.
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Indeed, Germany's Basic Law-its constitution-ratified after World War II in 1949, listed human dignity as not only the first protected right but also included it in a "forever clause," shielding it from the amendment process.
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At the same time the "forever clause" shields human dignity from the amendment process, it also shields the right to free speech.
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Notably, while there are no limitations on the right to personal dignity, the text of the German Basic Law contains limitations on the right to free speech. more specifically and relevantly, the right to free speech is limited by the "the right to personal honor."
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Similarly, the European Convention on Human Rights (ECHR) enshrines the freedoms of speech as a fundamental right, while at the same time placing limits on it. like the U.S. Constitution's First Amendment, discussed below, Article 10 of the ECHR guarantees that "[e]veryone has the right to freedom of expression."
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However, unlike the U.S. Constitution's First Amendment, Article 10 provides a list of interests that the State may rely upon to restrict the freedom of speech, including, most relevantly, restrictions "necessary in a democratic society, ... public safety, ... for the protection of health or morals, [and] for the protection of the reputation or rights of others"
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Moreover, Article 17 of the ECHR provides that no state, group, or person may interfere with, or destroy, the freedoms set forth in the ECHR.
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The U.S. Constitution is devoid of similar languge.
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it is Articles 10 and Article 17, along with the European Court of Human Rights' (ECtHR) interpretation of those articles, that has defined the member State's authority to regulate hate speech.When interpreting Article 10, the ECtHR has recognized that free speech and open debate are essential to a well-functioning democracy and the development of individuals.
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Moreover, the ECtHR has determined that in democratic states, pluralism and tolerance demand that even disturbing speech that causes offense must be protected.
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At the same time, the ECtHR has concluded that restrictions on free speech are permissible so long as they are proportionate to legitimate state interests in regulating speech-interests that include tolerance and protecting individual human dignity.
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It is through the application of the latter principle that the ECtHR has routinely upheld member States's regulation of hate speech for its incitement to animosity, discrimination, and intolerance. Indeed, the ECtHR has suggested that this sort of speech contributes either nothing, or very little, to the debate on matters of public concern.In discussing hate speech, the ECtHR has made a distinction between two types of speech based on its content. First, States rarely have the authority to regulate speech that constitutes political expression or speech that contributes to the discussion of matters of public interest.
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On the other hand, when speech promotes or justifies xenophobia, hate, or other types of intolerance, the ECtHR has held that it is not normally protected by Article 10.
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In determining whether alleged hate speech is unprotected, the ECtHR will take into account the political and social context of the speech.
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The more volatile the circumstances, the less protection provided by Article 10.
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The ECtHR will also consider whether the statements could be seen as advocating hatred or intolerance, either directly or indirectly.
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In this context, if the advocacy is related to hatred or intolerance of an entire group, it is less likely to be protected.
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Finally, the ECtHR will consider the mode of communication and its corresponding likelihood to lead to harmful consequences.
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The more public and hostile the mode of communication, the less likely it will be protected.
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By making this distinction between protected political speech and hate speech that meets the factors above, the ECtHR has determined that the latter has so little social value that it does not contribute to the debate on public issues, and is thus is not protected by Article 10.Importantly, inciting hatred and intolerance, under the ECtHR's case Law, is a distinct social harm and the incitement need not be articulated explicitly or directly. As for its status as a distinct social harm, the ECtHR has determined that incitement to hatred and intolerance may be criminalized even if it is not linked with a call to violence or another criminal act.
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The harm caused by racist or otherwise defamatory speech about an identifiable group is, by itself, sufficient to remove the statements from Article 10 protection.
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In addition, the ECtHR has not required members states to limit their criminalization of hate speech to only those provocations that are direct and explicit. Statements that tend to arouse a movement of opinion toward intolerance are beyond the reach of Article 10's protection.
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Moreover, the statements need not be expressed clearly, with no room for confusion as to their intent.
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Instead, members states may punish statements that only implicitly urge or call for discrimination.
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Thus, not only has the ECtHR characterized hate speech as expression that is disconnected from the discussion of matters of public concern, it has provided members states latitude to criminalize hate speech even where it is unconnected to violent rhetoric and is not explicitly directed to inciting intolerance.1.2. Hate Speech and the U.S. Supreme Court
Hate speech, as defined above, undoubtedly exists as part of the public discourse in the U.S. like Article 10 of the ECHR, the First Amendment of the U.S. Constitution-Article 10's analog-protects the right to free speech.
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However, unlike Article 10, the First Amendment's Free Speech Clause states that the State may "make no Law ... abridging the freedom of speech, or of the press ..." and contains no formal, textual exceptions.
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Nevertheless, the U.S. Supreme Court has identified a few categories of speech that are unprotected by the First Amendment because of its content; hate speech is not so recognized.
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Instead, hate speech, and the harm it causes to the individual and society, is contemplated and addressed by a variety of related U.S. Supreme Court cases. For example, the U.S. Supreme Court has erected nearly insurmountable constitutional burdens on the State's authority to punish speech that has the potential to lead to violence or is intended to cause emotional harm.
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Perhaps more directly related to the concept of the State's authority to regulate hate speech, the U.S. Supreme Court has also rebuffed attempts to restrict speech tha
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