"South Africa the Model? A Comparative Analysis of Hate Speech Jurisprudence …

of South Africa and the European Court of Human Rights."

The Journal of Free Speech Law has just published this new article, by Jacob Mchangama & Natalie Alkiviadou; here's the Abstract:

We compare the handling of hate speech by the European Court of Human Rights and the highest courts of South Africa: The latter, it turns out, adopts a more robust and well-articulated approach to the issues of hate speech than the former, falling more in line with the thresholds set out by documents such as the UN's Rabat Plan of Action. We argue that South Africa can be a good template for other countries, organizations, and social media platforms seeking a human-rights-based approach to handling hate speech.

This is our fourth non-symposium article (we've also published eleven in a symposium last year), and it was selected through our usual blind peer review process. It's also our first article from foreign authors, and our first dealing with foreign and comparative free speech law.

We encourage everyone to submit manuscripts to the Journal, and we promise a decision within 14 days (a promise which we have consistently adhered to), though you need to submit to us exclusively for those 14 days. Of course, as you can tell from our first issue, we are open to articles from all perspectives, whether arguing for broader free speech protection, narrower free speech protection, or anything else.

Comments

[jdgalt1]

A country that permits ongoing murder and robbery of one race by a more favored race has nothing to teach others about morality.

Notice that some parts of the US arguably fit this description too.

[Ed Grinberg]

We'll stop prosecuting violent crimes (because most of the offenders happen to belong to a certain (favored) group).
We'll start prosecuting "hate speech."
We'll call this "equity."

[Krayt]

However, in the recent case of Nix v. Germany (2018), which involved a German blogger who posted a picture of Heinrich Himmler wearing a swastika armband and likened him to the officers of an employ-ment office which he alleged discriminated against his mixed-race daughter, the court came to a different conclusion. Despite the fact that the applicant neither advocated nor defended Nazism but instead sought to demonstrate the problems with a state employment office, the court found the claim of free speech protection to be manifestly ill-founded, noting that:

In the light of their historical role and experience, States which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis. The court considers that the legislature’s choice to criminally sanction the use of Nazi symbols, to ban the use of such symbols from German political life, to maintain political peace (also taking into account the perception of foreign observers), and to prevent the revival of Nazism must be seen against this background.

You know who else censored people like Nazis?

Armed Man From the Government: You shall say, "Not the government."

"Uhhhh, not the government."

[rsteinmetz]

Nazi symbols in Germany are a special class of content generally banned except in certain specific circumstances, generally depicting historic events. Using a picture of a Soviet or other oppressive regime like the Jim Crow south would probably have been acceptable.

[Krayt]

That is true, but doesn't seem to be the objection here. They seem to be objecing to comparing the current government to the Nazi government in principle, as a derogatory thing.

That is people in power using censorship to protect themselves from criticism. I understand, if disagree with, the desire to censor Nazi-positive speech ("Goooooooo Nazis!") to prevent a resurgence. This might be very necessary for years after the war. (Was it necessary after the US civil war in the south?)

But this is using a parallel to Nazis as a demostration of evil, and a large magnitude of evil at that, as hyperbole.

[Krayt]

You would think you'd want to build the idea, as background common knowledge, that comparing something to Nazis was a bad thing for whatever it is.

[ducksalad]

It's overused enough that I'm willing to apply the Rule of Goats as a deterrent.

Not as a legal restriction of course, just in how it's treated socially.

[David Nieporent]

I believe that the applicable German law has as one of its premises that comparing (the vast majority of) people to Nazis serves to diminish the crimes of the Nazis. If the meter maid who gives you a ticket because your meter is 30 seconds expired is a parking Nazi, then Naziism isn't really that bad.

[Brett Bellmore]

Well, sure, but ironically, (And think of the recent post on how censorship laws in Germany didn't stop Hitler...) if the German government DID start trending Nazi, or a genuine Neo-Nazi party arose, it would be illegal to point it out.

[Voize of Reazon]

German law criminalizes insults that would be protected opinion under US law and calling someone a Nazi would tend to qualify, though prosecutions are rare.
The law in question in this article though bans the use of Nazi symbols, not Nazi comparisons. German courts recognize one purpose of the symbol ban is to prevent those symbols from becoming commonplace, the first step toward them becoming unobjectionable.

[Voize of Reazon]

Krayt, where do you get " They seem to be objecing to comparing the current government to the Nazi government in principle, as a derogatory thing."?
Nix was convicted of using symbols of an unconstitutional organization, banned in Germany unless it fits into a statutory exception (to serve civil education, to combat unconstitutional movements, to promote art, science, research or teaching, to report on current or historical events, or for similar purposes). The text you quote comes from the European Court of Human Rights who sustained the conviction.
You can read the full ECHR decision here. Nothing there (including the bit you quoted) suggests that criticizing the government was the basis of the conviction.

[WuzYoungOnceToo]

We argue that South Africa can be a good template for other countries, organizations, and social media platforms seeking a human-rights-based approach to handling hate speech.

I think the better question is whether or not countries ought to be "handling hate speech", not the best way(s) to do it. (Spoiler Alert: They shouldn't be.)

[GKHoffman]

In case you don't recognize him, Jacob Mchangama is the author of the recent book Free Speech (I forget the subtitle), which I have read and would recommend to all.

[AmosArch]

Yup, I thought sjws wanted to get past the Lèse-majesté laws of the stupid ancient peoples

[DaivdBehar]

South Africa? Sure thing. Good legal system to emulate. We can dispose of our unwanted tires.

I am not reading lawyer trash. I am betting complex procedures, tests, and elements are required for decision making. That will promote lawyer rent seeking, and get the support of Volokh.

Does the article mention, The Exception Fallacy? This is how hate speech works in this country. David Duke hates Jews and blacks. He does not spew hate on his website. He publishes adverse articles about their misconduct. These commit the Exception Fallacy. He would republish stories of black crimes, of which there are millions a year. Yet, blacks are no more likely to be criminals than others. The articles give the wrong impression by repetitive negative but exceptional stories.

All media are the David Duke website. The sole exception is C-SPAN. Brian Lamb said he counted stories to maintain a balance. The lack of balance is persuasive hate speech. MSNBC nitpicks Donald Trump. Fox reports every mispoken word by Biden. Selective reporting is hate speech.

Is the Exception Fallacy covered in the article?

Before you mention it, I do not hate the lawyer. My comments are all love speech. There is not greater love than one great enough to correct.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thailand is a current particularly obnoxious example of lèse-majesté enforcement.