Limiting Free Speech (39): From Hate Speech to Hate Crime, the Case of Rwanda

Although I take human rights, and especially freedom of expression, very seriously (I wouldn’t be writing this blog otherwise), I also believe that hate speech can produce hate crime. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. This is called incitement to violence. I do understand the problems with this justification of limits on freedom of speech: it can be abused by those who want to muzzle their opponents. If people react violently to criticism, ridicule or insults, then they may claim – wrongly in my view – that the responsibility for the violent acts lies with those making “incendiary remarks”. You can read my objections against this type of argument here.

Nevertheless, I think there are other cases in which hateful words can turn into hateful crimes. The classic example is Radio Mille Collines, the Rwandan hate radio that called for the extermination of the Tutsi ethnic minority population before and during the 1994 Rwanda Genocide (it infamously swept up the Hutu’s to start a “final war” to “exterminate the cockroaches”):

During the 1994 Rwandan genocide, Radio Télévision Libre des Mille Collines (RTLM) broadcast anti-Tutsi propaganda and called for violence against Tutsis, which many experts believe significantly contributed to the violence. An interesting new job-market paper by David Yanagizawa seeks to determine the precise role that RTLM played in the genocide. Yanagizawa relies on “arguably exogenous variation in radio coverage generated by hills in the line-of-sight between radio transmitters and village” to determine the causal effects of RTLM. He finds that RTLM played a significant role in the genocide: full village radio coverage increased violence by 65 percent to 77 percent. The effects are larger in villages with a large Hutu majority and in villages without access to other information sources i.e. villages with lower literacy rates. In total, Yanagizawa calculates that the radio station’s broadcasts explain 45,000 deaths (or 9 percent of the total death toll). (source)

If this is correct, it’s difficult to maintain the doctrinal position that freedom of speech is always and absolutely beneficial and worthy of protection without exception. Unless of course you claim that freedom of speech is more important than the right to life. I refer to an older post on balancing different human rights.

Don’t get me wrong, freedom of speech is absolutely vital, for many different reasons (some as fundamental as thought itself, see here), and no regular reader of this blog can say that I’m ambivalent about it. But what I do object to is the school of thought that believes free speech is the uppermost value, trumping all others in all cases and all circumstances. Maybe this quote from Isaiah Berlin can help to get my point across:

I came to the conclusion that there is a plurality of ideals, as there is a plurality of cultures and of temperaments. I am not a relativist; I do not say “I like my coffee with milk and you like it without; I am in favor of kindness and you prefer concentration camps” — each of us with his own values, which cannot be overcome or integrated. This I believe to be false. But I do believe that there is a plurality of values which men can and do seek, and that these values differ. There is not an infinity of them: the number of human values, of values that I can pursue while maintaining my human semblance, my human character, is finite — let us say 74, or perhaps 122, or 26, but finite, whatever it may be. (source)

This description of Berlin’s value pluralism is from the Stanford Encyclopedia of Philosophy:

According to Berlin’s pluralism, genuine values are many, and may—and often do—come into conflict with one another. When two or more values clash, it does not mean that one or another has been misunderstood; nor can it be said, a priori, that any one value is always more important than another. Liberty can conflict with equality or with public order; mercy with justice; love with impartiality and fairness; social and moral commitment with the disinterested pursuit of truth or beauty; … knowledge with happiness; spontaneity and free-spiritedness with dependability and responsibility. Conflicts of values are “an intrinsic, irremovable part of human life”; the idea of total human fulfillment is a chimera. “These collisions of values are of the essence of what they are and what we are”; a world in which such conflicts are resolved is not the world we know or understand. … “we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others”.

Terrorism and Human Rights (19): The War on Terror and the Right to Privacy

During an apparently never-ending war on terror (what could be the end of such a war?), people are quick to believe their “liberal” governments when they tell them that a bit less privacy is a cheap price to pay for more physical security.

However, many of those governments, because they claim to be “liberal” and “democratic”, feel uneasy about this. After all, if rights are tradeable like this, if they depend on the circumstance and should be surrendered when the circumstances become more difficult, what is left of them? They become a luxury for good times, rather than a safeguard in bad times. (Another sign of this is the way in which the war on terror is eating away at other rights as well, e.g. the right not to be tortured; but let’s stick to the right to privacy here).

Because of this unease, governments claim that the right to privacy isn’t really being sacrificed. “If you have nothing to hide, you have nothing to worry about”. It’s only the terrorists whose right to privacy is being limited. But in the meantime

  • DNA databases are being established for almost entire populations
  • CCTV is omnipresent
  • “data mining” is used extensively (after all, how can you determine if someone is a terrorist if you haven’t first violated his or her right to privacy?)
  • etc.

I don’t mean to imply that rights such as the right to privacy are absolute or that there can never be a good reason to limit one right for the sake of another. On the contrary. But limiting rights can only be done when there is a “clear and present danger” for other rights or for the rights of others. A vague and everlasting “war on terror” provokes limits on rights when there’s no such danger. Limiting rights becomes the normal MO of governments keen to prevent such a danger from ever occurring. And that’s unacceptable. Obviously, terrorism is a danger, but governments can only limit rights in order to prevent it when the danger is clear and present, and imminent. A general and vague fear of terrorism will not do.

What Are Human Rights? (16): Limited Rights That Need to be Balanced Against Each Other

Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights. Georg Wilhelm Friedrich Hegel

Some rights can cause violations of other rights or of the rights of others, which is why rights have to be balanced against each other.

In specific instances of rights that come into conflict ’97 for example the right to free speech and the right to privacy ’97 a judgment has to be made about the priority of one right or the other. The decision can be made by a judge, but also by the legislator. There can be laws that limit one right for the sake of another. The phrasing of human rights articles in constitutions and treaties often provides the possibility of such legal limits.

These limits are an almost daily occurrence, even in a perfect system. The system of human rights is not a coherent and harmonious whole.

Libel or expressions of racial hatred, for instance, are often illegal, and with good reason. Expressions of hatred are not only insulting (people should be able to live with insults); they can also lead to discrimination or even physical harm. It is a thin line between aggressive words and aggressive actions.

The problem of course is how to decide between rights. On what grounds do we give priority to one right or the other? Only if we have a rule for this can we distinguish between legitimate and illegitimate limits on rights, or better between limits and violations. Part of the rule could be that some rights are clearly absolute. It seems unacceptable to kill someone, even if doing so would allow us to protect some other right of some other person. Limits on the right to life will then never be legitimate and this right should always have priority and can in turn limit other rights.

However, this rule leaves most problems of conflicts between rights unsolved because most rights are not absolute. One cannot always avoid moral, philosophical and hence contestable reasoning when taking a decision between rights. Some subjective judgment on the harm we would inflict when limiting one right or the other might help. In the case of a journalist who divulges intimate details about the private life of an actor, what would be the harm inflicted on the journalist when we limit his or her right to free speech? Probably less then the harm he or she inflicts when limiting the right to privacy of the actor.

Again, a judgment may not always be as easy as in this example. Deciding between rights remains a difficult matter and one that is better left to professional judges.

What Are Human Rights? (12)

Human rights are rights which belong to humanity, to all persons of all cultures, nations, states, color, gender etc., whether or not the legal system in which they live explicitly protects these rights. And which belong to all of us equally. No one has more or less rights than the next person.

Human rights are therefore essentially moral claims, and claims which are superior to the legal rules which happen to be in force in the country in which one lives. If necessary, they can be used to challenge these legal rules.

In many countries, these moral claims have been incorporated in the legal rules, often even in the supreme legal rules such as the constitution. This means that people can go to court to have their rights enforced in case of violation, violation either by way actions committed by the government or fellow-citizens, or by way of legislation. In the latter case, a constitutional court may decide that certain laws are invalid and “null and void”.

Different human rights are interdependent. They need each other. Freedom of expression can be quite useless without education and food. But the struggle for social justice also requires freedom of expression.

Rights can be limited. The system of human rights is not a harmonious whole. Rights come into conflict, even in a country that tries its best to respect all rights. Freedom of expression can harm the right to privacy of someone, for instance. Then there has to be a decision: which right takes precedence?

An important characteristic of human rights is their link to democratic government. One right which humans have is political participation. And a democracy is the best way of guaranteeing this participation. Read also art. 3 of Protocol I to the European Convention:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.

But the link to democracy goes further. All human rights must be respected, and respected simultaneously, in order to have a proper democratic process. Many tyrannies allow the existence of opposition groups and even, sometimes, a limited degree of political participation, but these groups are harmless because they do not have equal access to publicity, because they do not have the freedom to organize as they wish, or because the people lack the material or intellectual resources necessary to be able to choose wisely among candidates.

It is apparent from this enumeration that the link between democracy and human rights (all human rights) is quite intense. Choosing political leaders is the expression of an opinion. There is obviously a reason for the etymological link between the words “vote” and “voice”. Democracy is the application of human rights to the field of government. Human rights are democratic rights because they are necessary for democracy, just as democracy is necessary for human rights.

The latter is also hinted at in the considerations preceding the articles of the European Convention:

“those fundamental freedoms which . . . are best maintained . . . by an effective political democracy”.

But human rights are not just a necessary prerequisite for democracy. They bring about democracy. When you have the right to express your opinions and to call all kinds of things into question, why would you stop at the government? You will automatically express an opinion on the government and call the government into question. And because it is futile and sad to express an opinion that has no consequences in the real world, people will begin to claim the implementation of their political opinions, which will be the birth of democracy.

Democracy and human rights cannot function separately. They need each other and reinforce each other. Where you have one, you also have the other. And where you have one without the other, there is something missing in what you have. A democracy without human rights is not an ideal democracy, because it cannot function adequately. Human rights without democracy are not complete because one of the most important uses of human rights – calling into question the work of the government and creating a common point of view on the work of the government – is not allowed, or, if it is allowed, does not have any useful consequences because it is impossible to have a democratic vote.

Human rights are not politically or ideologically neutral. They require democracy and are required by democracy. This supports the statement that human rights are not something primarily directed against politics or a way to limit politics. There are an essential part of democratic politics.