This essay will be divided into four sections. In the first section, the issue about toleration and freedom of speech is discussed. In the second section, the idea of hate speech will be defined. And the related issue of hate speech will be discussed
MLL 110-LAW, SOCIETY AND CICIL RIGHTS
Semester One 2006
COMPULSORY ESSAY BY UYEN NGUYEN
- The violent reaction to cartoons recently published in Denmark that satirized the prophet Muhammad and the jailing of English historian David Irving in Austria for denying the Holocaust are both serious blows to freedom of speech. In a healthy, tolerant and civilized society freedom of speech must be absolute, no matter how offensive or inflammatory some speech might be.
BOUNDARIES TO FREEDOM OF SPEECH
Some people believe that in a tolerant society freedom of speech means that any point of view is legitimate and should not be suppressed. However, the two events, the satiric cartoon of Muhammad written in Denmark and the jailing of David Irving for denying the Holocaust, which lead people to think about what is meant by free speech and where is its boundary, and whether freedom of speech should be absolute or not. Yet, dilemma sets in when we try to limit freedom of speech. On the one hand, if we try to limit freedom of speech, we may risk the danger to allow governments to censor any speech that expresses ideas different from their. Nevertheless, if we do not limit freedom of speech some inflammatory speech which expresses hatred towards certain group of people might exist and leads to social disharmony. In this essay, I will argue that the above dilemma is in fact faulty and freedom of speech should be limited for some speech, like racists expressing hatred towards certain communities. A society can still be healthy, tolerant and civilized, even if there is limitation of free speech. Further, to limit freedom of speech does not necessary mean that the government can use it as an excuse to censor opposing ideas. This essay will be divided into four sections. In the first section, the issue about toleration and freedom of speech is discussed. In the second section, the idea of hate speech will be defined. And the related issue of hate speech will be discussed in third section. In the final section, it will exam whether the satiric cartoon of Muhammad and the David Irving’s denial of the use of gas chamber in Holocaust form a hate speech.
I.Tolerance or intolerance?
According to John Horton, toleration is the idea that any expression of beliefs, actions or practices which the tolerator prefers not to exist, is permissible. It follows that a tolerant society is a society in which any expression of beliefs; actions and so forth are permissible, even if some tolerator have a negative attitude towards it. However, this definition is not good enough, a society does not only consist of different agents performing different behaviors, but also consists of different agents, who belong to different communities and perform differently. Hence, the above definition should include the concept of community as well. The term ‘community’ here is intended to be vague, for it can be used to range over many different groups of people existing in the society, including different ethnic groups, different religious groups and groups with different sexual preferences.
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Given the above definition, it follows that anything done by another community is tolerable or permissible; even those actions which will bring harm to the existence of a particular community. Let’s call this absolute toleration. The idea of absolute toleration is unacceptable for the following two reasons:
a) It is logically unsound. The concept of toleration presupposes the mutual existence of different communities. Suppose in a world, which contains only two communities, A and B. Given the idea of absolute toleration, A should tolerate every action done on him by B, even though that would lead to the termination of A. If that is so, how can there be toleration in this world, after A is terminated? The concept requires the necessary of the existence of the tolerator, no toleration is possible at all without this. Hence, those acts which would bring about the potential disappear of a tolerator should not and cannot be permitted at all. Therefore, those acts which are harmful to the existence of a community are intolerable.
b) Sometimes, to measure the strength of an idea is to see what kind of consequences it will produce. Given that absolute toleration allows those actions which are harmful to the existence of a group to happen, those communities which are under the threat might defend against the attack. As a result, social disharmony would happen.
Given the above reasons, actions, including speech, which are harmful to the existence of a community, should be banned. Likewise, speech expressing hatred should also be dismissed. Hence, freedom of speech should be limited.
Why hatred speech is not allowable? Even it expresses hatred, it seems that it does not follow that it attempts to terminate a community. Hate speech should be banned because the telos lurking behind hate speech is trying to terminate the other community by inflicting emotional injury to the member of a community. According to Matsuda, hate speech will encourage the members of a community to feel themselves inferior, destroy their self esteem as well as personal security, so as to cause emotional trauma in them. Due to this, the member of a community may try to dissociate or withdraw him/herself from the community. This in turn leads to the decomposition of a community. Hate speech, then, although does not bring any physical harm to the community, it intends to devastate a community by causing psychological pain to its members. Given that hate speech is intolerable, it seems that a clear and rigorous definition of speech is needed. In regard to this, Joshua Cohen analysis on publishing speech seems to be helpful here. He thinks that three types of consideration should be taken into account when analyzing speech. First, a person has to consider what kind of interest that a speech intended to serve. Second, a person should take the cost of expressing a speech in to account. Third, a person should also pay attention to the backgrounds of face and human life by the time a speech is articulated. By following the above suggestion of Cohen, hate speech can be analyzed as follow: (a) it serves to fulfilled those who desire to get rid of certain community, (b) the cost of it is emotional injury of the community in target and (c) the community on target is within the socio-historical background in which the speech is made. Someone may find this definition problematic, for many speeches can cause emotional injury in a person. For instance, emotional injury may occur to a student whose view is being criticized by his/her lecturer. In this case, it sounds counter-intuitive to count the criticism of the lecturer as a hate speech. It seems that there is a major difference between the emotional injuries caused by hate speech and those that caused by criticism. However, what is this difference? This issue will be discussed in the next section.
III.Ideas vs Facts
The difference between the emotional injuries result from hate speech and those caused by criticism I that hate speech is target to he fat about the community, while criticism is target to the idea in which a community believes. The notion ‘fact about the community’ includes all those physical, biological and historical facts which build up a community. In contrast, ‘the idea in which a community believes’ refers to any though or statement in which a community believes to be true. The difference between the two notions is that those fact which constitute a community is not alterable, any change of it may risk the disappearance of that community, whereas, the idea in which a community believes is changeable. It concerns about the truthfulness of a thought, and a community can always choose to give up or withhold certain beliefs. Given the above analysis, the emotional injuries involved in hate speech are those that related to the facts which constitute a community.
The distinction between hate speech and criticism is prevalent in the legislation on the prohibition of speech act, even though the differences between the emotional injuries produced by them are not taken into account. For instance, the Racial and Religious Tolerance Act 2001 (VIC) in Australia, it states that hate speech towards certain ethnic group and religious group is not allowable. In S.8, the Act says,
‘A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of that other person or class of person’.
On the other hand, it also permits criticism on the belief of a community. In S.11, the Act states that in any decision or debate or racial or religious issue is permissible if it is ‘engaged in reasonably and good faith’.
The above analysis of hate speech and the actual formation of this Act form a counterexample to one of the argument against limiting freedom of speech. According to Haarscher, some people argue that if the limitation of freedom of speech is permissible, a society may risk the dangerous possibility in which the government may try to censor every speech. However, the analysis which has been proceeded so far, and the actual formation of the Racial and Religious Tolerance Act 2001(VIC) in Australia show that the above argument is indeed false, for in limiting freedom of speech, only certain type of speech is limited and this is hate speech.
IV.The case of Muhammad cartoon and David Irving denial of Holocaust
Before closing the articles, the application of the above analysis to the two current controversial issues, the satiric cartoon on Muhammad and the denial of Holocaust by David Irving, will be discussed.
The newspaper in Denmark has published some satiric cartoon on the Muslim holy figure, Muhammad. The publication has aroused the rage of many Islamic countries and whether the above event is allowable under the concept of freedom of speech. Given the proceeding analysis in this paper, the publishing of satiric cartoon does not constitute a kind of hate speech. First of all, the cartoon is directed toward certain ideas, that is, the fundamentalist idea exists in the Muslim community, rather than attack those people who practice Muslim, such as, describing them as retard. For this reason, the emotional injuries caused by the cartoon are more like those injuries produced by criticism than those inflicted by hate speech. Likewise, by being satiric in nature, the cartoon seems not carry the intention to terminate the Muslim community. Consequently, it does not ‘incite hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of person’.
On the other hand, the David Irving’s denial of the use of gas chamber in the massacre in Holocaust does form a hate speech. The English historian, David Irving, has denied that the Nazi German has employed gas chamber in its massive termination of Jewish people in the Holocaust. Because of this erroneous claim, David Irving has sentenced to jail for three years in Austria. The imprisonment of him is justified in the sense that it does form a hate speech. The denial of the use of Holocaust constitute hate speech in the sense that it tries to eliminate the historical fact which constitutes the Jewish community and more importantly it seems to be sympathetic, and hence serve the interest of the Nazi regime of terminating Jewish community. Hence, David Irving’s denial of the use of gas chamber in Holocaust constitutes a hate speech.
In conclusion, the concept of absolute tolerance is nonsense form a logical and consequential perspective. Actions, including speech, which aims to and intends to reject a community, should be regarded as intolerable. As a consequence, hate speech by carrying with the intention of extinguishing a community through causing emotional injuries should be banned. By applying this conception of hate speech towards the two controversial events, the satiric cartoon of Muhammad and the denial of the use of gas chamber in Holocaust by David Irving, shows that the former does constitute a hate speech, while the later indeed constitutes one.
Arthur, John “Freedom of Speech” (1997) 38(4) Philosophical Books p. 229-230
Haarscher, Guy “Tolerance of the Intolerant?” (1997) 10(2)Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law
Racial and Religious Tolerance Act 2001 (Vic)
Alexander, Gerard Hear No Evil, Speak No Evil (2006) CBS News
Horton, John “Toleration.” In E. Craig (Ed.), Routledge Encyclopedia of Philosophy London: Routledge. (1998)< > at 4 May 2006
John Horton. “Toleration.” In E. Craig (Ed.), Routledge Encyclopedia of Philosophy London: Routledge. (1998)< > at 4 May 2006
John Arthur, “Freedom of Speech” (1997) 38(4) Philosophical Books p. 229-230,
Racial and Religious Tolerance Act 2001 (Vic) s.8
Guy ,“Tolerance of the Intolerant?” (1997) 10(2)Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law p.241
Act above n 4
Gerard Alexander, Hear No Evil, Speak No Evil (2006) CBS News at 6 April 2006 p.1