The U.N. Hates Hate Speech More Than It Loves Free Speech
The U.N. Secretary General is going soft on one of the most fundamental human rights.
On Feb. 25, U.N. Secretary-General António Guterres gave what might be called a state of global human rights speech at the United Nations Human Rights Council. Despite advances in poverty eradication and gender equality, and record numbers of countries abolishing the death penalty, Guterres warned that “the human rights agenda is losing ground.” Guterres specifically highlighted the danger of “xenophobia, racism, and intolerance—including rising anti-Semitism and anti-Muslim hatred.” He continued: “Hate speech is a menace to democratic values, social stability, and peace. It spreads like wildfire through social media, the internet, and conspiracy theories.”
According to Guterres, hate speech has moved into the mainstream of both liberal democracies and authoritarian states and is being abetted by populist politicians and political parties previously deemed beyond the pale. As a result, he promised to present a “global plan of action on a fast-track basis” to counter hate speech. What exactly Guterres has in mind is yet unclear. But Guterres’s diagnosis is dangerously superficial, and his cure may be worse than the disease.
Guterres’s concern was fueled by the debate surrounding the global compact on migration adopted in December 2018. The compact created fierce backlash in a number of democracies, where populist parties and movements warned it would result in increased migration and censorship despite its nonbinding nature. Countries including the United States, Hungary, Austria, and Australia refused to sign the compact. According to Guterres, the debate generated a “flood of lies” and dehumanized migrants and refugees.
It is hardly the first time in history that authorities feel threatened by the combination of loosening controls on communication technology and the democratization of the public sphere. Following the English Civil War, an English historian blamed “the paper bullets of the press” for the bloodshed. And after the end of pre-publication censorship in 1695, conservative authors worried that a “civil war started with ink may end in blood.” William Blackstone’s 18th-century Commentaries on the Laws of England argued that “to censure the licentiousness, is to maintain the liberty, of the press” since a man “may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.”
The limits of free speech were also intensely debated in the 1940s when the U.N. adopted its so-called International Bill of Human Rights, consisting of the Universal Declaration of Human Rights and two legally binding covenants. The International Covenant on Civil and Political Rights protects freedom of expression but also mandates that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
This provision was mainly championed by the Soviet bloc and its allies, whereas most Western democracies opposed an obligation to ban hate speech in human rights law. Eleanor Roosevelt, the chair of the U.N. Commission on Human Rights, found the proposed language “extremely dangerous” and warned against provisions “likely to be exploited by totalitarian States for the purpose of rendering the other articles null and void.” She also feared that the provision “would only encourage Governments to punish all criticisms in the name of protection against religious or national hostility.”
It is possible to take seriously both the potential harm in hate speech and Roosevelt’s warning about censorship. There can be little doubt that what the scholar Susan Benesch calls “dangerous speech” has contributed to atrocities and even genocide in places including Rwanda, Myanmar, and Sri Lanka. But outside narrow categories of speech that may incite violence, it is difficult to define hate speech without affecting political speech or targeting specific groups. This is amply demonstrated by Guterres himself, since he seems to include fake news in the category of hate speech.
Free speech enjoys stronger legal protections in Europe than most other places in the world, but hate speech remains a growing exception. The limits of free speech are ultimately defined by the European Court of Human Rights and include the right to “offend, shock or disturb,” which has done much to protect press freedom. But the court has also held that “as a matter of principle it may be considered necessary … to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance.” This has given European states a wide margin to prohibit expressions deemed offensive or hateful. In 2017, Germany passed the Network Enforcement Act, which requires social media platforms to remove illegal content within 24 hours or risk fines of up to $56 million. Accordingly, Facebook operates a deletion center with more than 1,200 content moderators in Germany, raising fears of overblocking of even legal content. In 2016, British police detained and questioned more than 3,300 people for “grossly offensive” comments on social media. In 2018, a British YouTuber was convicted for posting a video in which, as a joke, he had taught his girlfriend’s dog to perform a Nazi salute and respond to anti-Semitism. In France, legitimate concerns over rising anti-Semitism have led to the criminalization of peaceful campaigns to boycott Israel as well as crude comedy.
These inherent problems with hate speech laws are magnified when applied to the global level and the 193 member states of the United Nations, many of whose governments are authoritarian. In illiberal states, such bans become a weapon in the hands of the authorities rather than a shield for vulnerable groups and minorities.
As a response to the 1994 genocide, Rwanda adopted strict genocide denial laws. But these laws have been widely abused to silence political and journalistic criticism of President Paul Kagame. In 2017, Venezuela’s Constituent Assembly passed the Anti-Hate Law for Tolerance and Peaceful Coexistence, with prison sentences of up to 20 years. Predictably, the law has been used to prosecute journalists critical of President Nicolás Maduro’s authoritarian government. Russia has even copied Germany’s Network Enforcement Act, which is likely to be used against critics of the Kremlin.
Guterres rightly notes the proliferation of anti-Muslim hatred. But in Central Asian countries such as Tajikistan and Kazakhstan, Muslims are frequently the targets of laws against “religious hatred.” Ablaykhan Chalimbayev spent five years in a Kazakh prison for quoting a commentary on the Quran. Other Kazakh victims include atheists and human rights activists. Hate speech laws may also be used to protect religious authorities and doctrines from criticism. The Organization of Islamic Cooperation has repeatedly sought to expand the definition of hate speech under international law to include “defamation of religions.” In Russia, laws against religious hatred are used to protect the Orthodox Church from offense, including irreverent art.
Although hate speech may cause harm, it is not clear that bans against it actually help reduce violent extremism or even hatred. A 2017 study on right-wing extremist violence in Western Europe concluded that “countermeasures intended to constrain radical right politics appear to fuel extreme right violence” and that open-mindedness “and dialogue might then work better than exclusion, public repression, or aggressive confrontation.” A study by an expert appointed by the United Nations’ Office of the High Commissioner for Human Rights also concluded that hate speech laws in Latin America do not “seem to have made a meaningful contribution to reducing racism or … discriminatory conducts.”
And while identifying causality between speech and violence is notoriously difficult, much data suggests that overall there is a positive correlation between freedom of speech and social peace. On the other hand, freedom of expression is a prerequisite for strategies of so-called “counterspeech,” which has shown promises of empowering victims of hate speech, including on social media, by giving them a voice to confront the hatred and expose the haters. Even the European Commission Against Racism and Intolerance acknowledges that criminal law is often ineffectual and that addressing the causes of hate speech is “much more likely to prove effective in ultimately eradicating it.” In fact, it is arguable that without free speech the changes in attitude needed to put the evils of racism and discrimination at the top of the global agenda would not have come about.
The U.N. should and must fight racism and hate speech. But any attempt at widening the definition and strengthening the enforcement of hate speech bans under international law creates a clear and present danger for freedom of expression already under global attack. The highly uncertain gains of such a repressive approach are likely to be severely outweighed by both the intended and unintended consequences. Journalists, activists, dissidents, and minorities may well end up paying a steeper price than racists and hatemongers. Free speech can sometimes be ugly and hurtful. But it is an evil arising out of a much greater good. And without a robust protection of free speech, the world is likely to be less safe, tolerant, and free.
Jacob Mchangama is the executive director of Justitia, a Copenhagen based think tank focusing on human rights and the rule of law and the host and producer of the podcast Clear and Present Danger: A History of Free Speech.