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Protecting Wider Purposes: Hate Speech, Communication, and the International Community David Goldberg I. Introduction Samuel Walker states, in Hate Speech: The History ofan American Controversy , that "The issue before us is whether offensive words, about or directed toward historically victimized groups, should be the subject of criminal penalties."! The title of Walker's book reinforces the impression that the issue of hate speech2 is of American origin or only really controversial in the United States. It certainly is in that country, not least because, as Smolla points out, "We need not look to cultures markedly different from our own to see how far out of step our view of protections for racist speech are from prevailing world opinion."3 Or, as Walker himself puts it: "Students of American history and culture have long wrestled with the 'American exceptionalism.' How different are major features of American society from those of even Western European countries? Suffice it to say, that in protecting hate speech, the United States is unique."4 This "exceptionalism" is officially endorsed,5 but, it is interesting to note, it is not endorsed absolutely--even at the official level (see Security Council resolutions below) and, on the unofficial level, is positively questioned by significant sections of U.S. civil society.6 Most legal or philosophical discussions about hate speech do take place within one national context. However, no state, or ideology, is an island today-if it ever was.7 Hate speech is international in several ways. First (in common with all speech), it can cross national borders and cause offense.8 Thus, the Canadian Human Rights Commission has been investigating complaints by two Toronto citizens that the California-based "Zundelsite" breaches Section 13 of the Canadian Human Rights Act, which forbids the communication of hate messages "by means of a telecommunication undertaking within the legislative authority of Parliament ."9 Second, the issue engages attempts by the international commu251 252 Liberal Democracy and the Limits of Tolerance nity to coordinate and harmonize the national principles for its regulation .1O Third, governments are increasingly trying to establish principles and procedures to facilitate cross-border enforcement of domestic regulations , as witness the major initiative on "cyber crimes" involving the G-8 states.11 It is difficult not to be impressed at the amount of concern expressed recently by the international community concerning hate speech. Meetings took place during 1997 (it was the European Year against Racism) highlighting the problem and proposing ways forward to deal with it.12 The United Nations Center for Human Rights held a seminar on "the role of Internet with regard to the provisions of the International Convention on the Elimination ofAll Forms ofRacial Discrimination."13 That topic is particularly appropriate, as much of the current concern arises out of a perception and alarm that on-line hate speech is either a new phenomenon or else constitutes a new means ofdisseminating hate speech in more effective and damaging ways. However, use of older media to disseminate "ethnic hatred" continues and gives rise both to concern and proposals to deal with it. 14 This essay does not deal specifically with either the philosophy or the law(s) of hate speech.15 Rather, it aims to stimulate thought and discussion on some relatively neglected aspects of hate speech regulation, mainly from the standpoint of such international action as there has been on the matter. In particular, the essay argues that (a) there is an evolving body of international law (and prelegislative discussion and thought) concerning hate speech, but that this law should be differentiated as either international criminal law, human rights law, or universal national principles for civil law; (b) that this evolving law tends to gloss over a crucial but littlediscussed topic in the international (and indeed national) law of hate speech, namely, what constitutes an appropriate criminal penalty for the crime?; and (c) that such law (and debate) as exists is a helpful resource that can, and should, be brought to bear on national arguments and decisions ; however, several different meanings of international action should be distinguished before any normative evaluation can be made. II. The Evolving Body of International Law on Hate Speech According to Louis Henkin,16 traditional international law did not make much room for outlawing group defamation. It was neither concerned with "private defamation of others, whether ofindividuals or groups" nor with "how a state treated its own inhabitants." There may have been exceptions, because of a special agreement between states, or if...

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