Incitement in Cyberspace
Wayne Sumner
University of Toronto
Every liberal democracy approaches the regulation of hate speech in its own particular
way. In this paper I will draw on the experience, and the particularities, of the hate speech laws
that have been in place in Canada since 1970. But I will also bring to the issue a principled
framework for locating the boundaries of free speech, one derived from John Stuart Mill. The
conclusion I reach is that, while the best-known piece of Canadian hate speech legislation cannot
be justified under this framework, a lesser-known offence has a better chance of success. In the
distinction between these offences there are, I suggest, important lessons for the legal regulation
of hate speech. In the final section I will apply these lessons to the distinctive problems posed by
hate speech on the Internet.
1.
Mill’s Tests
John Stuart Mill’s essay ‘On Liberty’ is well known for its trenchant opposition to content
restrictions on the expression and circulation of opinions. However, Mill recognized that
expression falls into the public, rather than the private, sphere, due to its potential impact on
others. As such, the limits to its regulation are set out in his general principle of liberty, which
holds that ‘the only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.’1 This principle entails in part
that any legislative measure restricting liberty of conduct must pass a harm test: the government
must be able to show that the conduct in question poses a risk of harm to third parties. Where the
conduct in question is a form of expression the threshold set by the harm test will be particularly
high, due to the important values protected by freedom in this domain. Mill himself emphasized
-----------------------------------1
John Stuart Mill, On Liberty. In John M. Robson, ed., Essays on Politics and Society (Toronto:
University of Toronto Press, 1977), p. 223.
2
the importance of free inquiry in the search for truth, but in his classic treatment of free speech
issues Frederick Schauer identified two other values as well: the maintenance of a robust
democracy and the enhancement of individual autonomy or self-fulfilment.2 This trio of values is
now routinely rehearsed by courts in their adjudication of free speech issues.3 In the case of
expression, therefore, the kind of harm threatened must be serious, rather than trivial, and the risk
of causing such harm must be significant, rather than slight.
If restrictive legislation manages to pass the harm test it does not follow, however, that it
is justified by Mill’s liberty principle. That principle makes harm to others a necessary condition
for limiting liberty, but not a sufficient one.4 The legislation must also pass a cost-benefit test:
restricting the expression in question must yield a better balance of benefits over costs than
leaving it unregulated.5 This requirement of a positive cost-benefit balance does not provide a
simple algorithm for deciding whether, and when, the state is entitled to enforce restrictions on
forms of expression in those cases in which the harm test has been satisfied. However, it does
suggest the kinds of factors which will be relevant. First, the restriction must have some
reasonable expectation of success. While it may be thought desirable to inhibit or suppress some
form of expression by legal means, it is a further question whether doing so is possible. To the
extent that the restrictions can be readily circumvented, by an underground market or by
technological innovations such as the Internet, the case for them is weakened. Second, there must
be no less costly policy available for securing the same results. Even when it promises to be
effective in preventing some significant social harm, censorship abridges personal liberty and
-----------------------------------2
Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press,
1982), chs. 2-5.
3
For the Canadian courts see R. v. Keegstra, (1990) 3 S.C.R. 697 at 762-4, 863-4. This case will be
subsequently referred to as Keegstra.
4
Mill, op. cit., 292: ‘...it must by no means be supposed, because damage, or probability of damage, to
the interests of others, can alone justify the interference of society, that therefore it always does justify
such interference.’
5
Ibid., 276: ‘As soon as any part of a person’s conduct affects prejudically the interests of others, society
has jurisdiction over it, and the question whether the general welfare will or will not be promoted by
interfering with it becomes open to discussion.’
3
deprives consumers of whatever benefits they may derive from the prohibited forms of expression.
It should therefore be the last, not the first, resort of government for preventing the harm in
question. Where less coercive measures (education, counterspeech, etc.) promise similar results
they should be preferred. Where a narrower infringement of freedom of expression will be equally
effective it too should be preferred. Third, the expected benefits of the restriction must, on
balance, justify its costs. Censorship can compromise other important social values, such as
vigorous engagement in public debate. It can have a ‘chilling effect’ on legitimate forms of
expression (literary, artistic, etc.). However well intended the restriction might be, in practice it
will be administered by police, prosecutors, judges, or bureaucrats who may use it to justify
targeting unpopular, marginal forms of literature with no significant capacity for social harm. On
balance, the benefits to be gained by legal restraints on expression must be great enough to justify
the collateral costs.
2.
The Harms of Hate Speech
If we apply Mill’s framework to the particular case of hate speech, the first question we
must face is the harm such speech is capable of causing. In answering that question, it will be
convenient to distinguish two different (though not mutually exclusive) causal pathways by means
of which hate messages targeting a particular minority might harm the members of that minority.
We will say that the harm is direct if it results from exposure to the messages by members of the
target group themselves. This may occur when individuals are subjected to verbal abuse in the
form of racist epithets or insults, but also when hate messages intrude upon the lives of their
targets in the form of anonymous telephone calls or notes, graffiti spraypainted in public spaces,
crosses burned in front yards, pamphlets delivered through the mail, the desecration of sacred
places, or other means. Mari Matsuda has enumerated these direct harms as follows:
Victims of vicious hate propaganda experience physiological symptoms and emotional
distress ranging from fear in the gut to rapid pulse rate and difficulty in breathing,
nightmares, post-traumatic stress disorder, hypertension, psychosis, and suicide....
4
Victims are restricted in their personal freedom. To avoid receiving hate
messages, victims have to quit jobs, forgo education, leave their homes, avoid certain
public places, curtail their own exercise of speech rights, and otherwise modify their
behavior and demeanor. The recipient of hate messages struggles with inner turmoil....
As much as one may try to resist a piece of hate propaganda, the effect on one’s
self-esteem and sense of personal security is devastating. To be hated, despised, and alone
is the ultimate fear of all human beings. However irrational racist speech may be, it hits
right at the emotional place where we feel the most pain.6
Even if there were no empirical evidence to support Matsuda’s claims, they have a pretty
secure footing in common sense. After all, hate messages directed at members of their target
group are not meant to engage the audience in a rational debate or persuade them of some
important truths. Rather, they are meant to hurt--by insulting, humiliating, or intimidating--and it
would scarcely be surprising if they were often to succeed in this aim. Many of the immediate
responses Matsuda describes are the ones all of us evince when subjected to abuse or insult,
whether motivated by prejudice or not. Fortunately, however, we do not need to rely solely on
common experience here: there is also scientific support for the attribution to victims of hate
speech of these kinds of emotional, attitudinal, and behavioural effects.7 It is also worth noting
that they bear more than a passing resemblance to some of the short-term effects on children of
sexual abuse, and on women of sexual violence. There is no clean line here between abusive
speech and abusive conduct--or, rather, the former is just one type of the latter.
The harms of hate speech, however, do not end with its direct impact on its victims. We
will say that the harms are indirect if they work through the mediation of attitudes and conduct on
-----------------------------------6
Mari J. Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,” in Mari J.
Matsuda et al, eds., Words That Wound: Critical Race Theory, Assaultive Speech, and the First
Amendment (Boulder, CO: Westview Press, 1993), 24-5.
7
See, for instance, Clay Calvert, “Hate Speech and its Harms: A Communication Theory Perspective,”
Journal of Communication 47, no. 1 (1997); Laura Leets, “Experiencing Hate Speech: Perceptions and
Responses to Anti-Semitism and Antigay Speech,” Journal of Social Issues 58, no. 2 (2002); Laura Beth
Nielsen, “Subtle, Pervasive, Harmful: Racist and Sexist Remarks in Public as Hate Speech,” Journal of
Social Issues 58, no. 2 (2002).
5
the part of an audience other than the target groups themselves. The two broader outcomes to
which hate messages are most frequently said to contribute are the social inequality of target
minorities and violence against members of these minorities. These outcomes are not, of course,
really distinct, since the experience of living in fear of racist or homophobic violence is itself one
form of social inequality. However, for analytic purposes I will deal with them separately, first
with inequality and then, finally, with violence.
Whatever their precise content, hate messages preach the inferiority of the groups they
choose to single out and advocate one or another form of discrimination against the members of
those groups. Actual discriminatory practices against minorities would therefore count as success
for the producers and distributors of these messages. But members of hate groups typically have
little power to impose such practices beyond the confines of their own narrow circles. Success
therefore will necessarily require enlisting a much wider public in the cause. That, in turn, will
require an impact on the attitudes of non-members of the target minorities--members, that is, of
the dominant social groups. It is this mechanism of subtle and pervasive attitudinal change that
Matsuda also attributes to hate speech:
Research in the psychology of racism suggests a related effect of racist hate
propaganda: At some level, no matter how much both victims and well-meaning
dominant-group members resist it, racial inferiority is planted in our minds as an idea that
may hold some truth. The idea is improbable and abhorrent, but because it is presented
repeatedly, it is there before us. “Those people” are lazy, dirty, sexualized, money
grubbing, dishonest, inscrutable, we are told. We reject the idea, but the next time we sit
next to one of “those people,” the dirt message, the sex message, is triggered. We stifle
it, reject it as wrong, but it is there, interfering with our perception and interaction with
the person next to us.8
-----------------------------------8
Matsuda, op. cit., 25-6 (citation omitted).
6
Clay Calvert has pointed to the same effect: ‘It is a long-term, cumulative harm that accrues with
repeated use of racist epithets directed at targeted minorities. The harm is the subordination of
racial minorities, including the perpetuation and reinforcement of discriminatory attitudes and
behaviors. In brief, use of racist expressions creates and maintains a social reality of racism that
promotes disparate treatment of minorities.’9
We are obviously dealing here with an alleged causal relationship between the incidence of
hate speech within a society and the discriminatory treatment of that society’s target minorities.
This connection has a strong basis in common sense since hate speech often openly advocates an
unequal social status for minorities. However, advocacy is one thing and successful advocacy
quite another. It is plausible to suppose that hate speech makes some contribution toward the
unequal social status of minorities such as blacks, Asians, Jews, Muslims, aboriginals, and gays
and lesbians. But no serious scientific attempt has been made to factor out and measure the
extent of this contribution, nor is it easy to see how this could be done. It seems that in the
territory of equality few advances are possible beyond what common sense and experience can
teach us.
Things are rather different when we turn to the issue of violence. Hate violence takes the
form of assault on a person or damage to property motivated by hostility toward the group with
which the person or property is associated. Most legal jurisdictions now classify certain cases of
murder, assault, public mischief, and the like as hate crimes on the basis of evidence of such
motivation. Whereas the literature on the effects of hate speech may be limited, there is ample
evidence of the damage that hate crimes can do both to their immediate victims and to other
members of the target communities.10 None of this, of course, is surprising: we know that being
-----------------------------------9
Calvert, op.cit., 6.
See, for instance, Kevin T. Berrill and Gregory M. Herek, “Primary and Secondary Victimization in
Anti-Gay Hate Crimes,” Journal of Interpersonal Violence 5, no. 3 (1990); Linda Garnets, Gregory M.
Herek, and Barrie Levey, “Violence and Victimization of Lesbians and Gay Men: Mental Health
Consequences,” Journal of Interpersonal Violence 5, no. 3 (1990); Jack Levin and Jack McDevitt, Hate
Crimes: The Rising Tide of Bigotry and Bloodshed (New York: Plenum Press, 1993); Arnold Barnes and
Paul. H. Ephross, “The Impact of Hate Violence on Victims: Emotional and Bahavioral Responses to
Attacks,” Social Work 39, no. 3 (1994); Kellina M. Craig, “Retaliation, Fear, or Rage: An Investigation
10
7
the victim of racist or homophobic violence is a harm, just as we know the same for sexual
violence. The question in this case, as in the earlier, is whether there is a causal connection back
to a particular form of expression. In brief: does hate speech cause hate crimes?
Many hate messages either imply or openly advocate the legitimacy of violence against
minorities. By so doing, it is arguable--indeed highly plausible--that they contribute to a climate
which fosters hate crimes and which members of vulnerable minorities experience as threatening
or intimidating. The extent of this contribution is, of course, difficult to measure with any degree
of certainty but we can point to one quite tangible link in the causal chain from speech to crime.
While some hate messages are disseminated by isolated individuals, most of them are generated by
organized hate groups. For these groups the primary purpose of the materials they circulate,
largely now through the Internet, is not to contribute to a broad public debate concerning Jews or
blacks or gays. Rather, the materials are used to reinforce the shared ideology that binds the
group together and to recruit new group members.11 For a hate group, hate speech is its creed or
ideology, and its call to action. That action frequently involves acts of violence against members
of target groups or their property. It is impossible to determine with any accuracy what
proportion of the overall incidence of hate crimes can be attributed to individuals affiliated with
hate groups.12 Some studies have suggested that most such crimes are committed for thrills or in
defence of ‘turf’ against ‘outsiders’, and only a small proportion by individuals for whom racism
of African American and White Reactions to Racist Hate Crimes,” Journal of Interpersonal Violence 14,
no. 2 (1999); Gregory M. Herek, J. Roy Gillis, and Jeanine C. Cogan, “Psychological Sequelae of HateCrime Victimization among Lesbian, Gay, and Bisexual Adults,” Journal of Consulting and Clinical
Psychology 67, no. 6 (1999); Gregory M. Herek, Jeanine C. Cogan, and J. Roy Gillis, “Victim
Experiences in Hate Crimes Based on Sexual Orientation,” Journal of Social Issues 58, no. 2 (2002).
11
Alexander Tsesis, Destructive Messages: How Hate Speech Paves the Way for Harmful Social
Movements (New York and London: New York University Press, 2002), p. 117: ‘...during opportune
times, [hate speech] inflames and recruits persons who can be catalyzed to wreak havoc on outgroups.
Discriminatory oratory functions to unify ingroups through a mutually captivating ideology. It
distinguishes ingroups from minorities, expresses the superiority of the dominant group, and organizes for
collective action against outgroups.’
12
This is especially so with some of the most frequently reported types of hate crime, such as vandalism
and harassment, which, because usually anonymous, result in a lower arrest rate.
8
or homophobia is a long-term mission.13 On the other hand, we have good evidence that many
hate groups have a history of involvement in racist violence.14 Furthermore, there have been a
number of prominent instances of hate violence in recent years where the perpetrator has had a
personal history of involvement with a hate group.15 When the group has advocated violence
against members of a particular minority and one of its adherents comes to practise just such
violence, it is difficult to resist a cause-and-effect conclusion. If that conclusion is at least
sometimes justified then hate messages can do more than merely legitimize or endorse violence
against target minorities--they can also encourage or even instigate it.
3.
Promoting and Inciting
The foregoing is the merest sketch of the harms commonly associated with hate speech. It
will, however, suffice to help us determine how the regulation of hate speech fares with respect to
Mill’s two tests. Recall that the harm test sets a high threshold for the regulation of any form of
expression, due to the values promoted by expressive freedom. Where expression falls below that
threshold--by posing no significant risk of serious harm to others--the issue of subjecting it to
coercive interference does not even arise. It is worth noting that this threshold for regulation is
even higher in the case of the criminal law, due to the seriousness of the sanctions attached to
transgression, the stress and expense of the trial process, and the social stigma that is carried by
-----------------------------------13
Barbara Perry, In the Name of Hate: Understanding Hate Crimes (New York and London: Routledge,
2001), 142: ‘...[I]t is clear that hate groups are not the primary perpetrators of bias-motivated crime. The
vast majority is committed--singly or in groups--by people who are not directly connected to any
organized form of hate.’) See also Levin and McDevitt, op. cit.; Jack McDevitt, Jack Levin, and Susan
Bennett, “Hate Crime Offenders: An Expanded Typology,” Journal of Social Issues 58, no. 2 (2002).
14
For Canada see League for Human Rights of B’Nai Brith Canada, Skinheads in Canada and Their
Link to the Far Right (Downsview, ON: B’nai Brith Canada, 1990); Warren Kinsella, Web of Hate:
Inside Canada’s Far-Right Network (Toronto: HarperCollins, 1994). Comprehensive accounts of hate
groups in the United States can be found in James Ridgeway, Blood in the Face (New York: Thunder’s
Mouth Press, 1995) and Kenneth Stern, A Force Upon the Plain (New York: Simon and Schuster, 1996).
15
In 1999 Benjamin Smith, an adherent of the World Church of the Creator, killed two people and
wounded twelve during a shooting rampage in Indiana and Illinois in which he was targeting blacks, Jews,
and Asians. Later that same year Buford Furrow, who had been affiliated with Aryan Nation-Church of
Jesus Christ, shot five people in a Jewish community centre in Los Angeles and then killed a Filipino
postal worker an hour later.
9
the acquisition of a criminal record. Liberal societies should be particularly reluctant to employ
criminal measures to prevent or control antisocial conduct: ‘Since many acts may be “harmful”,
and since society has many other means for controlling or responding to conduct, criminal law
should be used only when the harm caused or threatened is serious, and when the other, less
coercive or less intrusive means do not work or are inappropriate.’16 High though the threshold
might be, however, some conduct--and surely some expressive conduct--will surmount it.
The harms of hate speech are most visible and verifiable when they are direct, in the form
of abusive or insulting language used against its target group. While the criminal law does not
ordinarily protect citizens against verbal abuse, it may do so when the abuse reaches the level of
harassment, threat, or intimidation. There seems little doubt that racist or homophobic abuse can
reach that level. However, when it does then the means chosen for delivering the message will
itself constitute an offence: criminal harassment, uttering a threat, public mischief, and so on.
Where there is evidence that the offence is hate-motivated, which will generally be provided by
the content of the message, then it can be prosecuted as a hate crime for the purpose of seeking
an enhanced penalty.17 In other cases, such as neo-Nazi rallies in Jewish neighbourhoods, time,
manner or circumstance restrictions should suffice to ensure that the offending messages are not
imposed on an unwilling target audience. In none of these instances does there seem to be a need
to address the problem by imposing a general content restriction on hate speech.
The situation is more complicated where the indirect harms of hate speech are concerned.
Vulnerable minorities who are subjected to racist or homophobic discrimination or violence
doubtless suffer harms serious enough to warrant legal protection. But that is not the issue--or at
least not all of the issue--where the regulation of hate speech is concerned. The law already has
-----------------------------------16
Government of Canada, The Criminal Law in Canadian Society (Ottawa, 1982).
I take no stand here on the justifiability of penalty enhancement for hate crimes, nor on the issue of
whether this is itself a free speech restriction; for arguments on both sides of these issues see James B.
Jacobs and Kimberley Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford
University Press, 1998) and Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law
(Cambridge, MA: Harvard University Press, 1999).
17
10
resources--both human rights law and criminal law--adequate, at least in principle, for protecting
citizens against these harms. The free speech issue requires us to answer a different question: to
what extent can the undoubted harms of discrimination and violence be imputed to hate
messages?
I am not going to attempt a general answer to this question, if only because the right
answer for a particular society will surely reflect the particular situations of vulnerable minorities
in that society. So I will confine myself in what follows to the Canadian context and the Canadian
law. In common with most European countries (but unlike the United States) Canada regulates
hate speech by means of criminal law. The best known instance of such regulation makes it an
offence to communicate statements that wilfully promote hatred against groups identified by such
characteristics as race, religion, and sexual orientation.18 In its 1990 Keegstra decision the
Supreme Court of Canada upheld the constitutionality of this hate promotion law, but also
undertook to clarify some of its key terms. In the Court’s view, hatred was to be construed
narrowly as ‘emotion of an intense and extreme nature that is clearly associated with vilification
and detestation’.19 In confining hatred in this way to the most extreme forms of contempt or
enmity, the Court was attempting to distinguish hate speech from milder forms of verbal abuse or
insult.
The requirement that the promotion of hatred be wilful makes the offence one of specific
intent: the speaker must ‘intend or foresee as substantially certain a direct and active stimulation
of hatred against an identifiable group’.20 The Court was very clear that the offence consists in
-----------------------------------18
Criminal Code, R.S., 1985, c. C-46 :
Section 319(2): Every one who, by communicating statements, other than in private conversation,
wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
...
(7) In this section, "identifiable group" means any section of the public distinguished by colour, race,
religion, ethnic origin or sexual orientation.
19
Keegstra, at 777.
20
Ibid.
11
the intent of the speech rather than its (probable or certain) effect: no evidence need be adduced
of any hatred actually promoted by the speech in question. In defence of this provision of the law
Chief Justice Dickson, writing for the Court, said that ‘it is clearly difficult to prove a causative
link between a specific statement and hatred of an identifiable group. In fact, to require direct
proof of hatred in listeners would severely debilitate the effectiveness of [the statute] in achieving
Parliament’s aim.’21 The law does require that the speech be public--or, rather, ‘other than in
private conversation’--but it is not clear that it requires that there be any listeners at all. Putting
hateful messages on my telephone answer machine or my personal website would doubtless be an
offence even if no one ever dialled my number or accessed my site. Furthermore, in those cases
where the speech does have listeners, the reaction of the audience is immaterial. I might be a
spellbinding orator able to stir up extreme enimity against the people I happen to hate on the basis
of their skin colour or the god they choose to worship or the partners they choose to sleep with,
but as long as this is my intent I commit the offence no less if I am inept enough to put my
audience to sleep or reduce them to helpless laughter.
Finally, the law criminalizes the wilful promotion of hatred. What is it to promote hatred?
Once again, Dickson took on the interpretive task: ‘Given the purpose of the provision to
criminalize the spreading of hatred in society, I find that the word “promotes” indicates active
support or instigation. Indeed the French version of the offence uses the verb “fomenter”, which
in English means to foment or stir up. In “promotes” we thus have a word that indicates more
than simple encouragement or advancement.’22 This construal, however, leaves us wondering
why, if this is what is meant, Parliament chose the language of promotion in the first place. In
ordinary English to promote something--a cause, let us say, or an event--is to do something to
bring it about or help it to succeed. In short, promotion need be no more than ‘simple
encouragement or advancement’; it need not rise to the level of instigating, fomenting, or stirring
up. On the other hand, there is a perfectly good ordinary English term which has its uses in the
-----------------------------------21
22
Keegstra, at 776.
Keegstra, at 776-7.
12
law and which does have this further connotation, namely incitement. ‘Incite’ derives from the
Latin root citare, which means to set in rapid motion, rouse, or stimulate (‘excite’ has the same
root). The Oxford English Dictionary offers the following as approximate synonyms for ‘incite’:
spur on, stir up (see ‘foment’, above), animate, stimulate, provoke, instigate. What these various
notions seem to have in common is the idea of (1) galvanizing someone into action by (2)
appealing to the passions rather than to reason. Inciting to action thus contrasts with counselling,
or advising, or persuading: it works through getting the subject worked up or agitated rather than
by offering a convincing argument.
So what the Court has told us, in effect, is that when Parliament spoke of the promotion
of hatred what it really meant was something very like incitement. But if that is what Parliament
meant, why did it not say so? Why did it use the seemingly more innocuous language of
promotion? Its terminological choice seems all the stranger when we note that incitement is the
common notion in comparable hate speech regulations in most European jurisdictions. In
England, for instance, incitement to racial hatred has been an offence since the passage of the
Race Relations Act 1965 and is currently defined as such under Part 3 of the Public Order Act
1986. In 2006 incitement to religious hatred was added to the Act as a comparable offence.23
So why is Canada out of step here?
As it happens, Parliament did have a good reason to speak of promoting rather than
inciting hatred, and I will return to this reason shortly. But meanwhile, it is worth noting that in at
least one crucial respect the crime of inciting racial (or religious) hatred is somewhat anomalous.
The notion of incitement has its uses in the law in non-speech contexts. Black’s Law Dictionary
defines ‘incite’ as ‘to provoke or stir up (someone to commit a criminal act, or the criminal act
itself)’ and includes incitement, along with attempt, conspiracy, and solicitation, in the roster of
-----------------------------------23
There are significant differences between the two offences. See Ivan Hare, “Crosses, Crescents and
Sacred Cows: Criminalising Incitement to Religious Hatred,” Public Law (2006), and Kay Goodall,
“Incitement to Religious Hatred: All Talk and No Substance?” Modern Law Review 70, no. 1 (2007).
Both racial and religious hatred have been included from the beginning under Canada’s hate promotion
law.
13
inchoate offences. Now it is in the nature of an inchoate offence that its unlawful status is, as it
were, parasitic on a principal or substantive offence. Attempted murder, therefore, is an offence
in its own right because murder is, and conspiracy to defraud is an offence because fraud is.
Likewise, in the criminal law in general incitement is a criminal act only where the act incited is
itself criminal. However, incitement of hatred is a conspicuous exception to this rule. Hatred is
not itself a criminal offence, not even when it is directed at a group defined by such markers as
race, religion, or sexual orientation. So it is somewhat odd, to say the least, that it should be
unlawful to incite someone to a state or condition that is not itself unlawful. It is difficult to think
of other examples in the criminal law, though assisting a suicide does come to mind. Here the
principal act is not criminal, though assisting it is. But at least in this case it is an act, on the part
of a second party, on which the collateral offence is defined. The further oddity of the crime of
inciting hatred is that what is incited is a feeling, or emotion, or attitude, rather than a concrete
act. The problem here is not that hatred is incapable of being incited: one can incite feelings in
another just as much as, or in addition to, acts. Indeed, as indicated earlier, it seems part of the
very meaning of incitement that the other is moved to act by the arousal of passion. No, the
difficulty lies in figuring out why inciting a feeling, where there is no requirement of any
subsequent act, criminal or otherwise, itself deserves the status of a criminal act.
The hate promotion law, therefore, seems doubly unlikely to pass Mill’s harm test, since
the offence it defines is doubly removed from the harms of discrimination and violence which it
aims to prevent. First, because the offence consists entirely in the intent to incite hatred, there is
no requirement that any hatred has actually been incited, and, second, even if the incitement has
been successful there is no requirement that it has resulted in, or even increased the likelihood of,
any criminal, or otherwise antisocial, act. For these reasons, the principal argument in favour of
the hate promotion law--that it can play an important part in preventing discrimination or violence
against vulnerable groups by reducing the general level of hostility toward them--appears to be
insufficient.
14
We should not conclude from this, however, either that hate speech should be subject to
no regulation nor that the notion of incitement has no role to play in such regulation. It is time
now to return to the question I posed earlier: if the Canadian Parliament meant to prohibit the
incitement of hatred why did it speak instead of its promotion? The straight answer, I think, is
that it had already utilized the notion of incitement to define a distinct offence. In Canada
virtually all discussion of hate speech regulation has focussed on the hate promotion law whose
constitutionality was at stake in the Keegstra case. Much less attention has been devoted to
another statute which prohibits the incitement of hatred against an identifiable group ‘where such
incitement is likely to lead to a breach of the peace’.24 In framing its hate speech restrictions
Parliament elected to define two distinct offences, one of inciting hatred and the other of
promoting it. While both speak of stirring up or provoking a feeling or passion, only the former
requires the crucial further link to an unlawful act. Unlike the hate promotion law, the hate
incitement law therefore retains an important element of the notion of incitement as an inchoate
offence: it requires what the hate promotion law does not, namely some contribution to the
(actual or potential) commission of an unlawful act (such as a hate crime against members of a
protected minority). In this respect it seems designed to deal with the final category of indirect
harm identified in the previous section: instances in which speakers use inflammatory rhetoric to
inspire listeners to commit acts of racist or homophobic violence.
It is worth noting here that Mill himself acknowledged that restrictions on incitement to
violence could pass his tests for justifiable limits to free speech. Having concluded his absolutist
defence of ‘the fullest liberty of professing and discussing, as a matter of ethical conviction, any
doctrine, however immoral it may be considered’,25 he then turned to the question ‘whether the
same reasons do not require that men should be free to act upon their opinions’. Unsurprisingly,
-----------------------------------24
Section 319(1): Every one who, by communicating statements in any public place, incites hatred against
any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
25
Mill, op. cit., 228n.
15
in answering this question he invoked the harm test--the action must be ‘at their own risk or
peril’--and then applied this test to the special case of the expression of opinions: ‘...even opinions
lose their immunity, when the circumstances in which they are expressed are such as to constitute
their expression a positive instigation to some mischievous act. An opinion that corn-dealers are
starvers of the poor, or that private property is robbery, ought to be unmolested when simply
circulated through the press, but may justly incur punishment when delivered orally to an excited
mob assembled before the house of a corn-dealer, or when handed about among the same mob in
the form of a placard.’26 Here we have the familiar ingredients of unlawful incitement: the use of
fiery speech to ignite strong passions which will in turn drive listeners to commit unlawful acts.
Mill touched on the same themes in his treatment of the doctrine of tyrannicide, where he
defended the right to circulate it as a general thesis but then continued: ‘...I hold that the
instigation to it, in a specific case, may be a proper subject of punishment, but only if an overt act
has followed, and at least a probable connexion can be established between the act and the
instigation.’27
By ‘instigation’ Mill evidently meant something very similar to what we now understand
as incitement. Similar, but not quite identical. As Mill makes clear, he would treat instigation as
an offence ‘only if an overt act has followed’. But this requirement is at odds with the common
conception of inchoate offences, whose commission does not require that the principal offence
actually be carried out. This is necessarily true in the case of attempts, which by their very nature
preclude the successful commission of the act, but it can be contingently true of all other inchoate
offences: my conspiracy to defraud may be overheard in wiretapped conversations, my solicitation
to murder may be made to an undercover police officer, and my exhortation to go out and beat up
on Jews or gays may be greeted by my audience with shrugs and yawns. Mill may still be right in
requiring ‘a probable connexion...between the act and the instigation’, but this requirement would
be satisfied if it could be shown that the incitement at least created a significant risk that the
-----------------------------------26
27
Ibid., 260.
Ibid., 228n.
16
offence would be committed. This condition is what Parliament seems to have had in mind in
stipulating that the incitement must be ‘likely to lead to a breach of the peace’, whether or not any
such breach actually occurs.
In the previous section I noted that messages disseminated by hate groups can have the
function both of recruiting new members and of motivating adherents to commit hate crimes
against members of target groups. This latter function makes for a much more direct causal
relationship between the message and the violence, one which is not mediated by shifts in the
overall climate of public opinion about minorities. However, it also opens up the possibility of
treating the communication of hate messages, under certain circumstances, as incitement to this
violence.
In the clearest cases of incitement, such as Mill’s corn-dealer example, it seems possible to
establish a causal link between the inflammatory speech and the resulting violent action, a link
sufficiently proximate to satisfy the condition that ‘but for’ the speech the violence would not
have occurred. It may legitimately be wondered whether anything resembling this kind of causal
proximity can be found in the case of hate messages communicated via the Internet. There are,
however, some precedents for finding that the contents of a website can constitute a threat of
imminent harm to targeted parties. In the United States an anti-abortion group ran a website
called ‘The Nuremberg Files’ that posted personal information about abortion providers, including
addresses and phone numbers.28 The list of providers distinguished them by status: in plain black
text for ‘working’, in grey for ‘wounded’, and crossed out and labeled ‘fatality’ for those who had
been murdered. The providers argued that the website constituted a true threat to themselves and
their families; the trial court agreed and issued a permanent injunction against the defendants, a
ruling which was ultimately upheld on appeal. Though the website did not overtly urge acts of
violence against the abortion providers, it clearly implied that such acts would be welcomed. If it
could be established that an assailant accessed the site prior to assaulting or killing a provider, it
-----------------------------------28
Jessica S. Henry, “Beyond Free Speech: Novel Approaches to Hate on the Internet in the United
States,” Information and Communications Technology 18, no. 2 (2009): 237–8.
17
would not be a stretch to find that the group responsible for the site had incited the violence.
Likewise, where hate crimes have been committed by members, or former members, of known
hate groups and have clearly been inspired by hate messages disseminated by those groups, there
seems no reason not to regard the latter as having incited the violence and as being liable to
prosecution on that basis. The Canadian offence of inciting hatred seems to target just such cases.
There remains a question, however, not about the legitimacy of such an offence, but about
its necessity. Recall the earlier discussion of the direct harms of hate speech: the injuries inflicted
on members of vulnerable minorities when they are the unwilling audience of such speech. While
no one doubts the reality or the seriousness of such injuries, there is a legitimate question whether
any special protection against them is necessary, alongside the general prohibition of such
antisocial acts as threats, harassment, intimidation, and vandalism. The same question arises
where the indirect harm of incitement to violence is concerned. If it is in general unlawful to
counsel or solicit an act of violence, then why is it necessary to define a special offence for the
particular case of incitement of a hate crime? Unlike the case of the hate promotion law, there is
no ground for principled objection to both of these other speech-related offences on free speech
grounds. Neither constitutes a broad content restriction on speech; instead, each prohibits hate
speech only in a concrete context in which it can be reliably linked to harm, or the risk of harm,
against assignable victims. The issue, rather, is one of redundancy, the special cases being
included under broader offences in which hate need not be an issue.29 It may, of course, be
possible to defend the redundancy, whether for the symbolic importance to minorities of
acknowledging their particular vulnerability, or for publicly communicating the message that
racism and homophobia have no place in a liberal social order, or for singling out certain uses of
speech as hate crimes for the purpose of penalty enhancement. These are matters which a liberal
-----------------------------------29
Strictly speaking, neither of Mill’s instigation cases, discussed above, involves hate speech. Neither
corn-dealers nor tyrants constitute an ‘identifiable social group’ for the purposes of Canada’s hate speech
laws.
18
society may be left to decide on pragmatic grounds without concern that it is thereby unjustifiably
infringing free speech rights.
4.
The Problems of Internet Hate
Thus far we have seen that criminal legislation restricting hate speech is capable of passing
Mill’s harm test as long as it narrowly targets expression that constitutes incitement to a hate
crime. However, as noted earlier, passing the harm test is not sufficient to justify the legislation; it
must also be possible to show that its benefits will exceed its costs. Two essential requirements of
the cost-benefit test are that there must be some reasonable expectation of success in limiting or
controlling the speech in question and that there must not be less costly, non-coercive, means of
achieving the same result. It is these further requirements that are put in question by the
transmission of hate speech by means of the Internet.
When the Canadian hate speech laws were put in place back in 1970, hate messages were
communicated by traditional means: books, pamphlets, leaflets, radio broadcasts, speeches to
assembled audiences, and so on. Over the next two decades there were only slight advances in
the available technology, which came to include such devices as videotapes and telephone
answering machines. But up to that point hate messages always had a fixed address, a particular
location from which they emanated and to which they could be traced. In Toronto, for instance,
everyone knew where Ernst Zundel lived and whence he produced and distributed his neverending
stream of Holocaust denial literature. All of that changed with the advent of the Internet, which
quickly became the medium of choice for the circulation of hateful materials. Through the use of
websites, newsgroups, bulletin boards, listservs, blogs, chat rooms, and the like, the messengers of
hate now had ready access to a global audience. That access in turn enabled groups with local
and regional bases to cooperate and join forces with like-minded groups in distant countries,
resulting for the first time in a truly globalized community of hate.30
-----------------------------------30
Barbara Perry and Patrik Olsson, “Cyberhate: The Globalization of Hate,” Information and
Communications Technology Law 18, no. 2 (2009).
19
Because hate messages on the Internet can be accessed anywhere, they can seem to be
located nowhere. When he lived in Toronto Zundel posted Holocaust denial messages on his
website which was housed on a server in California and could be accessed in Germany, where the
dissemination of such messages is illegal. Was Zundel committing a crime in Canada? In the
United States? In Germany? And if his actions were violating provisions in German law, how
could those provisions be enforced against him in Canada? The problems of applying domestic
law, with its strict jurisdictional boundaries, to materials transmitted on a medium that transcends
such boundaries are obvious. But if hate messages on the Internet are immune to control by
means of domestic law, and if the Internet is now the preferred medium for the transmission of
these messages, then how can hate speech laws satisfy the requirement of reasonable expectation
of success that is part of Mill’s cost-benefit test? Is there any longer any point to keeping such
laws on the books?
Before attempting to answer this question, it is worth looking at the other requirement in
Mill’s test: that there be no less costly, because non-coercive, means of controlling Internet hate.
What, then, are the other options?31
Counterspeech. The classic American response to ‘bad speech’ is ‘more speech’, or, better,
‘good speech’. Some anti-hate groups emphasize this strategy, most notably the Nizkor Project
(http://www.nizkor.org) which provides links to Holocaust denial websites and engages in
rebuttal of their claims.
Education. Closely related are efforts, by both governmental and nongovernmental agencies, to
teach the history of hate and its historical effects and to provide educational materials promoting
understanding and tolerance. School curricula in many jurisdictions now routinely feature
programs aimed at fostering in children respect for diversity. Countless NGOs contribute to the
same educational project, including such prominent examples as the Anti-Defamation League
(http://www.adl.org), the Simon Wiesenthal Center
-----------------------------------31
For a fuller discussion of these options, see Raphael Cohen-Almagor, “Fighting Hate and Bigotry on the
Internet,” Policy and Internet 3, no. 3 (2011).
20
(http://www.wiesenthal.com/site/pp.asp?c=lsKWLbPJLnF&b=4441257) and the Southern
Poverty Law Center (http://www.splcenter.org).
Monitoring. Some organizations, including both the Simon Wiesenthal Center and the Southern
Poverty Law Center, maintain and publish up-to-date lists of hate sites, in order to ensure that the
sites are included in filtering programs and in indexed search engines.32 The lists can also be sent
to Internet Service Providers (ISPs) in an effort to have the sites shut down.33
Filtering. Software capable of blocking access to hate sites is available both to parents and to
institutions such as schools and libraries. However, content filters are notoriously inaccurate,
both blocking access to legitimate sites and allowing access to suspect ones. Furthermore, they
are difficult to keep up to date as new hate sites come online. Alternatively, filters may be
installed at the ISP level, where they function to block blacklisted sites or filter content with
blacklisted keywords. Similar problems of inaccuracy may occur at this level, without the
opportunity for the end-user client to fix them.
Social responsibility by Internet Service Providers. ISPs can take the further step of refusing to
host websites which violate their ethical standards. Many ISPs require sites to conform to Terms
of Service agreements which prohibit, inter alia, content that is hateful or threatening. Once a
site has been identified as carrying hate messages (via the lists mentioned above), the ISP in
question can be urged to refuse to carry it. However, this may simply result in the site switching
to a different provider with fewer ethical qualms.
All of the foregoing initiatives are worthwhile and the organizations that are committed to
them deserve to be commended for their diligence in combatting Internet hate. However, one
would need to be an especially naive optimist to think that any of these ventures, or all of them
together, will put much of a dent in the global trade in hate messages. Estimates of the number of
current hate websites by the Southern Poverty Law Center and the Simon Wiesenthal Center
range from several hundred (SPLC) to several thousand (SWC), and these numbers appear to be
-----------------------------------32
33
For the many anti-hate activities of the Southern Poverty Law Center, see Henry, op. cit., 242-3.
The Anti-Defamation League is particularly active on this front; cf. Henry, op. cit., 244-5.
21
increasing, not decreasing. Whatever might be accomplished by non-legal means, there still seems
to be plenty of room here for legal action. We need, therefore, to take a closer look at the
possible effectiveness of domestic hate laws.
There have been some indications that the jurisdictional problems raised by the borderless
Internet may not be utterly insoluble. Let’s return to Ernst Zundel, the erstwhile resident of
Toronto whose Holocaust denial website was hosted on a server in California. When Zundel
came up on a hate speech charge under the Canadian Human Rights Act the tribunal hearing the
case asserted jurisdiction on the ground that he was the source of the website’s content despite its
foreign location. He was ordered to cease posting materials on the site, an order whose
enforcement he evaded only by moving to the United States.34 Presumably other jurisdictions
could likewise hold citizens and residents liable for posting hate messages on websites, wherever
the sites are actually located.
This would not, however, apply to the United States, where the First Amendment has
been interpreted by the Supreme Court as prohibiting content restrictions on speech, including
hate speech.35 Many of the world’s hate websites--quite possibly a majority--are hosted by ISPs
within the U.S. and both individuals and groups are able to post messages on them with impunity.
Anyone threatened with prosecution in a less accommodating country could then do as Zundel did
and seek sanctuary in the home of the free (assuming that the American authorities will have
them). It would be much more effective if there were some way whereby, say, French hate laws
could be enforced against sites located in the U.S., on the ground that their hate messages are
being disseminated in France.
-----------------------------------34
Bad idea. A year later Zundel was returned to Canada by the U.S. Immigration and Naturalization
Service for having overstayed his visitor’s visa. Since he was only a landed immigrant in Canada, never
having applied for Canadian citizenship, he was then deported to Germany, his home country, where he
was convicted of Holocaust denial.
35
Though the case of the anti-abortion website, discussed earlier, shows that the prohibition may not
apply if the contents of a website are found to pose a threat of imminent harm to targeted parties.
22
Actually, something surprisingly close to this foreign application of domestic law occurred
in the Yahoo! affair about a decade ago.36 In February 2000 the French director of the
International League against Racism and Anti-Semitism found the Yahoo! auction site to be
offering various items of Nazi paraphernalia for sale, contrary to French law. Later that same
year a French court ordered Yahoo! to either remove the items from its auction site, which was
located in California, or to block access to the site for French users. In response, the company
turned to the American courts for a declaratory judgement that the orders of the French court
were inconsistent with the First Amendment and therefore not enforceable in the United States.
In November 2001 it received just such a ruling from a district court in California. Five years
later the appellate court dismissed the case on various procedural grounds without reaffirming the
ruling of the district court. Meanwhile, Yahoo! had adopted a new policy which prohibited
auctions or classified advertisements on its site from offering to trade in items associated with hate
groups. It pulled all of the Nazi paraphernalia from its auction site and undertook to monitor the
site for similar products in the future. Its actions therefore brought it into substantial compliance
with French law.
While the Yahoo! affair did not exactly show that French law could be applied
extraterritorially to a service provider located in the United States, it did show that such providers
could be pressured into ensuring that their practices conform to hate laws in foreign jurisdictions.
However promising this might be, it has only limited relevance to the operations of Americanbased hate sites. Because Yahoo! is a legitimate organization with a good name and reputation to
protect, it is susceptible to moral pressure even in the absence of a binding legal ruling. The same
cannot be said for the proprietors of hate sites, though it might apply to some of the ISPs that
host them.
-----------------------------------36
For a full account of this affair, see Raphael Cohen-Almagor, “Freedom of Expression, Internet
Responsibility, and Business Ethics: The Yahoo! Saga and Its Implications,” Journal of Business
Ethics 106 (2012).
23
Some have felt that the problems of policing the Internet could be alleviated by a higher
degree of international cooperation and harmonization of domestic law. This was the aim of the
Council of Europe’s Convention on Cybercrime, more specifically of its 2003 Additional Protocol
Concerning the Criminalization of Acts of Racist and Xenophobic Nature Committed through
Computer Systems.37 The Protocol required members states to amend their hate laws so as to
attain a common minimum standard of enforcement. In principle, this is a sound idea, since it
would eliminate ‘safe havens’ for hate sites. In practice, however, it is considerably weaker than
it appears, since the Protocol includes an escape clause which reserves to a member state the right
not to criminalize the distribution of racist materials if doing so would be contrary to its
established principles concerning freedom of expression. Needless to say, this provision exempts
the United States from taking any action against Internet hate. Furthermore, some European
states (the United Kingdom) have not signed the Protocol, while others (Germany) have signed it
but not put it in force. Part of the problem may lie in the Protocol’s very broad definition of racist
and xenophobic material to include anything ‘which advocates, promotes or incites hatred,
discrimination or violence, against any individual or group of individuals, based on race, colour,
descent or national or ethnic origin’.38 The burden of much of my earlier argument in this paper
has been that there is a considerable difference between promoting and inciting (let alone merely
advocating) and also between hatred, discrimination, and violence. If the idea is to establish a
common denominator for the international regulation of hate speech, it would be wiser to limit it
to the incitement of a hate crime. That much even the Americans might be willing to sign on to.
In conclusion, the prospects of combatting Internet hate through domestic law are not
exactly bright. However, this is no reason to give up on hate laws altogether. For one thing, as
explained earlier, we lack any effective alternative to coercive state action in this domain. There
is at least a hard core of hate speech (incitement to violence) which it remains the responsibility of
-----------------------------------37
Fernne Brennan, “Legislating Against Internet Race Hate,” Information and Communications
Technology Law 18, no. 2 (2009).
38
Ibid., 125.
24
the state to attempt to contain by legal means. Laws targeting this kind of conduct are capable of
passing both of Mill’s tests for limiting freedom of expression. Furthermore, whatever the
difficulties of applying domestic laws to the borderless Internet, even in this computer age not all
hate speech uses this medium. Some of it is still communicated by much more modest, and
governable, means: speeches, radio broadcasts, posters, telephone and text messages, and so on.
Even if we are unable to control everything, this does not mean that we should try to control
nothing.