Wars without blood: Should hate speech be criminalized? (II)

I also showed the inherent problematic of trying to contain hate speech in an environment in which the protection, defence and sustenance of the country’s democracy rests mainly on free speech being guaranteed and defended.In this second and final segment, I look more closely at the tension between free speech and hate speech, including how […]

I also showed the inherent problematic of trying to contain hate speech in an environment in which the protection, defence and sustenance of the country’s democracy rests mainly on free speech being guaranteed and defended.
In this second and final segment, I look more closely at the tension between free speech and hate speech, including how some countries have tried to resolve this tension. I conclude by recommending some palliative measures:
There are two main perspectives in the debate on whether free speech should be restricted – the Libertarians, who favour protecting the rights of the individual to free speech and the Communitarians who believe that certain restrictions on free speech may be necessary to protect the community. For Libertarians, an almost unfettered free speech is needed to avoid the danger of condemning people simply because of the beliefs they hold and express. They equally argue that criminalizing views that are objectionable and offensive is the slippery rope to censorship. Restricting free speech, they equally argue, not only forecloses open debate but is also counter-productive especially as it risks making martyrs of people who have bigoted opinions.
Communitarians counter that a society that allows hate speech to go unpunished is one that tolerates discrimination and invites violence. They often cite examples with decades of hateful anti-abortion rhetoric in the US, which led to assassination of providers. They further contend that hate speech has no  redeeming value, and that people should not pretend that it occupies a rightful spot in the marketplace of ideas or has anything to do with ‘rational debate’.
The debate can be quite impassioned. What is not debatable is that in multi-ethnic and fragile societies like Nigeria, hate speech could very easily aggravate the structures of conflict, which will in turn complicate the nation-building process. Many countries who are confronted with the dangers of hate speech have sought to find ways of enacting laws and creative policies that will discourage bad behaviour and insensitive remarks without punishing bad beliefs. But it is not always an easy balancing act.
For instance though the International Covenant on Civil and Political Rights (ICCPR) – a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966 and which came into force from March 23, 1976 – encourages countries to prohibit any advocacy of national, racial, ethnic or religious hatred, in practice hate speech is  difficult to prohibit. In the US for instance, hate speech is protected as a civil right (aside from the usual exceptions to free speech such as defamation, incitement to riot, and fighting words). In fact laws prohibiting hate speech are unconstitutional in the United States as most often fail legal challenges based on the First Amendment of the Country’s Constitution which prohibits the restriction of free speech. In the US law courts, even ‘fighting words’ – which are categorically excluded from the protection of the First Amendment – are not that easy to separate from hate speech.
 An insight into how the American jurisprudence protects hate speech is in the   way the law treats the Ku Klux Klan – one of the worst purveyors of racial hatred in that country. In a landmark case, Brandenburg v. Ohio (1969), the arrest of an Ohio Klansman named Clarence Brandenburg on criminal syndicalism charges, based on a KKK speech that recommended overthrowing the government, was overturned in a ruling that has protected rascals of all political persuasions ever since. In a unanimous judgment, Justice William Brennan argued that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In another important case, Snyder v. Phelps (2011), Westboro Baptist Church, which has achieved some notoriety for celebrating the 9/11 attacks and picketing  military funerals, was sued by the family of Lance Corporal Matthew Snyder who was killed in Iraq in 2006 for intentional infliction of emotional distress after it picketed during the Corporal’s funeral. In an 8-1 ruling, the U.S. Supreme Court upheld Westboro’s right to picket.
In the United Kingdom, Section 18(1) of the Public Order Act of 1986 (POA) states that “a person who uses threatening, abusive, or insulting words or behaviour, or displays any written material which is threatening, abusive, or insulting, is guilty of an offence if: a) he intends to thereby stir up racial hatred, or; b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.” Among the panoply of other British hate speech laws is Section 5 of the POA, which makes it a crime to use or display threatening, abusive, or insulting words “within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby.”  Under this Section 5 of POA, Harry Taylor, an atheist who placed drawings satirizing Christianity and Islam in an airport prayer room, was convicted in April 2010 and given a six-month prison sentence.
In  The Netherlands, which is  long considered a bastion for the freedom of thought and expression, Articles 137(c) and 137(d) of the country’s Criminal Code prohibits making public intentional insults, as well as engaging in verbal, written, or illustrated incitement to hatred, on account of one’s race, religion, sexual orientation, or personal convictions.  In The Netherlands, the most prominent hate speech case to date is that of politician Geert Wilders, who was indicted by the public prosecutor in 2009 for his public comments about Muslims and Islam, and his release of a short film documenting what he called ‘inflammatory passages’ in the Qur’an.
In France, Section 24 of the country’s Press Law of 1881 criminalizes incitement to racial discrimination, hatred, or violence on the basis of one’s origin or membership (or non-membership) in an ethic, national, racial, or religious group. In 2005, politician Jean Marie Le Pen, runner-up in the 2002 presidential election, was convicted of inciting racial hatred for comments made to Le Monde in 2003 about the consequences of Muslim immigration in France.
Is hate speech less in countries that try to use the law to fight the menace than say the US where free speech is regarded as protected speech? This is debatable. What is clear is that laws can sometimes exacerbate the problem. A good example of this is what happened in the Australian state of Victoria where a law banning incitement to religious hatred led to Christians and Muslims accusing each other of inciting hatred and bringing legal actions against each other which only served to further inflame community relations.
I agree that Nigeria should do something urgently about hate speech but my personal opinion is that outright criminalization could exacerbate the problem. Just imagine if Junaid Mohammed, Edwin Clark,  Chudi Uwazurike, Gani Adams, Ango Abdullahi, Asari Dokubo, Ayo Oritsejeafor, etc are convicted of hate-speech. Certainly, their religious affiliations and ethnic and regional homelands will come out smoking, and we will all be taken through a journey of Nigeria’s political history and a documentation of non-members of the ethnic/regional/religious group, who made ‘more hateful speeches’ in the past without anything happening to them.  The affected ethnic/regional/religious group will then count the conviction of its self-proclaimed champion and advocate as another instance of the ‘injustice, hatred and victimization’ it suffers in the country.
I will recommend the following measures: There is an urgent need to develop, in conjunction with critical organs of the society such as media owners and practitioners, a taxonomy of what constitutes hate speech. Media houses through their unions should incorporate these as part of good journalism practice and impose sanctions on erring members who publish or broadcast hate speech-laden materials. The National Orientation Agency, in concert with civil society groups and community leaders, should also embark on a campaign against the use of hate speech. In the same vein, Internet Service providers should be encouraged to bring down blogs and websites they host which publish, promote or give unfettered space for the expression of hate speech. Above all  it should be impressed upon the political leadership at all levels that a deep distrust of the government is at the heart of the sort of free speech jurisprudence they have in the United States and that Nigerians have the same level of distrust of their governments.
Perhaps one of the most effective ways of combating hate speech is to ensure that purveyors of such speeches are marginalized. For instance in the UK, while the racist British National Party and the ideas it purveys are not banned, it will be political suicide for any politician to be seen to associate with  the party’s members. In Nigeria hate speech mongers are adopted as regional and ethnic heroes.
More importantly Nigerians should learn to laugh at themselves. This is already happening in some ways with our comedians who dish out jokes based on ethnic and regional profiling. In fact it could be argued that since every region and ethnic group in the country is both a victim and a victimizer when it comes to hate speech, they countervail and cancel out one another.