By: Jessica J. González, National Hispanic Media Coalition – Hot off the presses, the University of Pennsylvania’s Spring 2011 Edition of its Journal of International Law features an article from Professor Tanya Katerí Hernández. The article goes beyond traditional comparisons of hate speech laws in Europe and the US, incorporating the Latin America perspective (it is aptly titled, “Hate Speech and The Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models”).

As someone who has been advocating against hate and racism for the entirety of my short legal career, this is a piece after my own heart. Here’s a short excerpt:

“In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe’s hate speech regulations and free speech acceptance of hate speech in the United States. … It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise in the occurrence of hate speech worldwide.”

Hernández cites NHMC’s Petition for Inquiry on Hate Speech in Media as evidence that hate speech is on the rise. Then, in examining international norms, Hernández observes that the “significant harms hate speech incites have engendered a widespread international consensus that it should be illegal” but that the United States is “the extreme exception with an absolutist vision of free speech where much of hate speech is tolerated despite the fact that actual First Amendment doctrine does permit speech regulation in other contexts.

Now, before you misunderstand my intentions, please hear me out for a moment. NHMC has said time and again, it IS NOT seeking and it WILL NEVER seek anti-hate speech laws and regulations in the US. So that’s not where I’m going with this. However, I can’t help but fascinate over why we the people of the US, have decided that hate speech is part of free speech.

Most of you probably know that not all speech is Constitutionally-protected. The obvious – and in my opinion, overused – example is that one cannot yell “FIRE” in a crowded theater. But there are many more. To name a few, journalists can be prevented from disclosing military information in war time; obscene, indecent and profane material may not broadcast between 6am and 10pm; and conversations that rise to conspiracies are criminally punishable. None of these exceptions to free speech originated in the US Constitution. Rather, they were developed through legislation, administrative orders and court decisions, melding to the desires of the people. Striving for balance between free speech and other extremely important concerns, such as public safety, troop safety, child protection and crime prevention.

Recognizing that various exceptions to free speech have been created through the people’s will, and not the Constitution, is it so wrong for me to ask: why do people in this country work so hard to protect the haters and the racists? Do we really believe that hate speech significantly contributes to our democracy? Even to the extent that hate does have a role in our society, does that outweigh the grave harms that hate speech poses? NHMC’s Petition for Inquiry notes a number of those harms, including dramatic increases in hate crimes against people of color, LGBT people, people of certain religions and other targeted groups, immense psychological damage to hate speech targets (particularly to children and teens), along with the legitimization of racism and intolerance of those perceived to be “the others”.

Hernández teaches us that the international community sees it differently. In protecting hate speech, the US parts ways with the United Nations, and the majority of Latin American and European countries (most of which also have  freedom of expression laws). As Hernández reports, these countries chose to enact hate speech laws because “there is little social value in racist speech whose basic purpose is to degrade others, deny them their identity as human beings, exclude them from the entitlements of the basic social and constitutional covenant, and expose them to violence. By denying human dignity to some people, hate speech attacks the very basis of democratic systems.”

Hernández goes on to discuss the growing international trend of rejection of racism and hate. So is the US behind the times? Over two years ago, NHMC asked the federal government not for regulation, not for legislation, but rather to merely EXAMINE this issue and to start a public dialogue about civil discourse. Yet the two main federal agencies under which this issue falls, the Federal Communications Commission and the National Telecommunications and Information Administration, have done NOTHING. Thousands in the US have lost their lives to hate in the intervening time period. If you’d like the US to keep up with the times, please subscribe to this blog so that you can stay up to date on what NHMC is doing to eliminate hate and racism in the US, and so that you can add your name to the growing list of people, organizations and countries that oppose hate.


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