US Race Riots, Black Lives Matters: How can the US deal with racism?

Introduction

Following the death of an African-American by a white police officer in Minneapolis in the US, we are witnessing global protests related to ‘Black Lives Matter’. Sadly, this is not the first time that we have witnessed the death of African-Americans at the hand of White police officers in the US. This raises the question of what can the US federal government do to tackle this. Among issues related to police reform, which is easier said than done as policing in the US cannot be compared to the UK as in the US you have state police, city police, local police, sheriff departments all with differing levels of accountability and, as we have seen it the US on many occasion, individual states do not like to see the federal government ‘interfere’ with the running of that state. However, the federal government can two things, one is amending its hate crime legislation and the process in designating certain domestic groups as terrorist organisations, including the extreme far-right, white supremacist groups. This blog is quite lengthy but will take you through a comparative study between the UK and the US in relation to freedom of expression, hate crime and designating groups as terrorist organisations. This is based on my current research that I am writing up.

Right to Freedom of Expression

In a liberal democracy the right to freedom of expression is a vital human right that differentiates it from an authoritarian regime and, as such, most liberal democracies have some form of legislative provision protecting that right from being incrementally eroded by the state. These can come in the form of being enshrined in a state’s written constitution, a bill of rights, a convention, a charter or through a statute allowing the judiciary to assess if an executive government’s legislation is compatible with human rights provisions. In the UK Article10(1) European Convention on Human Rights provides this right where everyone has the right to freedom of expression that includes freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers. However, this is a qualified right and under certain strict conditions the state and its agencies can interfere with this right provided it is in accordance with the law and is necessary in a democratic society when it is in the interests of:
1. national security;
2. territorial integrity or public safety;
3. for the protection of the reputation or rights of others;
4. for maintaining the authority and impartiality of the judiciary;
5. for the prevention of disorder or crime, for the protection of health or morals; or,
6. for the protection of the rights and freedoms of others.

The first amendment of the US Bill of Rights protects freedom of expression stating that Congress shall make no law that abridges the freedom of speech, or that of the press.
Judicial Interpretation of Right to Freedom of Expression

To put some context into what is legally acceptable in relation to freedom of expression, in the UK case Redmond-Bate v Director of Public Prosecutions (1999) Lord Justice Sedley said:
‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. [My emphasis]

Important in this decision is that freedom of speech does not provoke violence and the European Court of Human Rights (ECtHR) has adopted a similar approach. In Erbaken v Turkey (2006) the ECtHR has tempered freedom of expression saying that tolerance and respect for the equal dignity of all human beings constitute the foundation of a democratic, pluralistic society, adding:

‘That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …’

In Texas v Johnson (1989) the US Supreme Court examined if burning the US flag breached the first amendment right of freedom of expression. The Court rejected the argument that Johnson’s conviction could be sustained on the ground that he had failed to show the respect for the US’ national symbol which may properly be demanded of every US citizen. The Court concluded that freedom of expression guarantees freedom to be intellectually diverse or even contrary and the right to differ as to things that touch the heart of the existing order, adding that encompassing the freedom to express publicly one’s opinions about the US flag, included those opinions which are defiant or contemptuous. US courts have delivered decisions where the first amendment protection of freedom of expression does not apply. These include defamation where the US Supreme Court held defamation is not protected under the first amendment where malicious, scandalous and defamatory statements are published and malice may be inferred in the publication of the statement. Another category of speech includes insulting or fighting words that the US Supreme Court held are not protected by the first amendment as they do not contribute to the expression of ideas nor do they possess social value in the search for truth. The court saw such terms as those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has also been held that sedition where statements preparing revolution to overthrow and destroy the US government by force and violence are not protected by the first amendment. In Brandenburg the US Supreme Court laid down tighter parameters as to when seditious statements are not protected under the first amendment, holding that inflammatory speech is protected unless such speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

From these examples we see the legal boundaries setting out what is acceptable under freedom of expression is wide. The judiciary in all both jurisdictions allow offensive, heretical, extremist views under the legal protection of freedom of expression and only when those views promote violence, incite lawless action or promotes or justifies hatred based on intolerance are those boundaries crossed and no longer protected under this right.

When Right Wing Narratives and Statements go From Being Offensive to Hate Crime

Hate Crime: UK
In the UK hate crimes come under Part III of the Public Order Act 1986, creating the offences of:
1. Using threatening, abusive or insulting words or behaviour or displays written material which is threatening, abusive or insulting with the intent of stirring up racial hatred or having regards to the circumstances racial hatred is likely to be stirred up;
2. Publishing or distributing material that is threatening, abusive or insulting with the intent to stir up racial hatred or having regards to the circumstances racial hatred is likely to be stirred up.

Racial hatred is defined as , ‘…hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins’. Part 3A of the Act introduced offences based on the grounds of religious hatred and hatred on the ground of sexual orientation. Under the Act religious hatred means hatred by reference to religious belief or absence of religious belief, with hatred on the grounds of sexual orientation meaning hatred by reference to sexual orientation be it towards persons of the same sex, the opposite sex or both. In 2018/19 103,319 hate crimes were recorded by the police in England and Wales with 78,991 for race hate crime, 8,566 for religious hate crime, 14,491 for sexual orientation hate crime, 2,333 for transgender hate crime and 18, 256 for disability hate crime, with half of those offences being public order offences and a third for violence against the person.

Hate Crime: US
Following the assassination of Martin Luther King on the 4th April, 1968 in Memphis, Tennessee, the US government introduced the Civil Rights Act 1968 creating the federal crime of wilfully injuring, intimidating or interfering with, or attempts to injure, intimidate or interfere with any person because of his race, colour, religion or national origin. The Hate Crimes Prevention Act 2009 introduced during the Obama presidency expanded existing 1968 Act to apply to crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity. The Act covers a wide array of activity. This ranges from aiming to prevent US states introducing law and customs resulting in persons being deprived of their constitutional rights on account of their colour or race, preventing disqualification of jurors due to race or colour and directly or indirectly depriving persons of employment, position, work, compensation or other benefit on account of their political affiliation, race, colour, sex, religion or national origin. The Act contains specific offences including intentional damage to religious property and intentional obstruction of persons in the free exercise of their religious beliefs. Under section 249 of the Act it is an offence to cause or attempt to cause bodily injury to a person because of that person’s race, colour, religion or national origin or because of their gender, sexual orientation, gender identity or disability. However, bodily injury does not include emotional or psychological harm to the victim.

There have been a number of convictions under the 2009 Act. Examples include US v Paul Beebe et.al where the three defendants wilfully caused bodily injury on a disabled young adult Navajo man. A self-proclaimed white supremacist, Beebe’s apartment was adorned with Nazi swastikas and other Nazi paraphernalia. The defendants shaved a swastika into the hair at the back of the victim’s head, writing ‘KKK’ and ‘White Power’ in the lines of the shaved swastika. The defendants also heated wire hangers and seared a swastika in the victim’s right bicep. The defendants argued that section 249(1) was unconstitutional and the federal government exceeded their powers in legislating under the thirteenth amendment that states neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The US District Court for the District of New Mexico followed the US Supreme Court decision in US v Flores that upheld the constitutionality of section 249(1) under the thirteenth amendment. In US v Frankie Maybee, among other charges, Maybee was charged with five counts of committing federal hate crime under section 249(1). With his co-defendant, Maybee conspired to cause bodily injury to five Hispanic males because of their national origin. Maybee chased the males in his truck, repeatedly striking the Hispanic Males’ car causing it to crash and burst into flames, injuring the five men. Maybee also used the argument that under the thirteenth amendment section 249(1) was unconstitutional. Once again, this argument was dismissed by the US District Court Western District of Arkansas relying on earlier US Supreme Court decisions. In 2017 Joshua Vallum was the first person convicted under section 249(2) of the Act for targeting a transgender victim. He received a 49-year prison sentence for murdering a 17-year-old transgender woman he dated and later killed on finding out she was transgender. The conviction led to the US Attorney General saying, ‘The Justice Department will continue its efforts to vindicate rights of those individuals who are affected by bias motivated crimes.’

The Disparity Between the UK and the US’ Hate Crime Law

While it is laudable and a positive step that US hate crime legislation has resulted in convictions, it is questionable if the US justice department is truly continuing its efforts to protect individuals affected by bias motivated crime due to section 249 Hate Crimes Prevention Act relating solely to bodily injury and not including emotional or psychological harm to a victim. The issue of cross burning has been questioned in US courts if such practice amounts to hate speech under the first amendment. The burning of a cross is a form of expression that has been associated with hatred and prejudice towards the US’ Afro-American black community. Cross burning was originated at the end of the US 1861-1865 Civil War when Confederate guerrilla groups and the Ku Klux Klan (KKK) used it as a symbol of racial supremacy to terrorise newly freed black slaves. It was also used by the KKK throughout the 1920’s when the lynching of black people was commonplace. In the US, particularly in the southern states, cross burning has been used as a warning and a threat to any person seeking to improve the political or economic condition of black persons. There is no doubt such practice and behaviour is designed to cause harassment, alarm and distress towards the intended victim, or in the words of section 249(c)(1) would cause emotional or psychological harm in that victim. As such, cross burning should be treated as a hate crime, but paradoxically this practice is seen as an expression protected under the first amendment.

As a result, even though some US states and provinces have tried to legislate against cross burning, the legislation was held as unconstitutional (and consequently unlawful) by the US Supreme Court, which is seen in the following cases. In R.A.V. v City of St. Paul (1992) the defendant burned a cross in the fenced yard of a black family who lived across the street where the defendant was living. Convicted of disorderly conduct under an ordinance issued by the City of St. Paul, the defendant claimed the ordinance was unconstitutional under the first amendment and the cross burning was no more than an expression. The Supreme Court found that the ordinance was unconstitutional under the first amendment because it singled out display of swastikas and cross burning that amounted to a right-wing expression of hatred. Also, the Court saw a problem with the ordinance as it punished persons who knew their actions would amount to alarm or resentment and, as the defendant did not utter a threat or incite violence, the defendant’s actions came under the protection of expression under the first amendment.

In Virginia v Black (2003) that came before the US Supreme Court in 2003, the case contained two separate occurrences of cross burning. The first was Barry Black, who was Virginia’s KKK leader. He burned a cross at a KKK rally in a field on private property belonging to a person sympathetic to the KKK. The second occurrence was Elliott and O’Mara who burned a cross on a black neighbour’s property because the neighbour made complaints to Elliott’ mother about the two of them shooting guns for target practice in their back yard. Both were convicted under a Virginia state law of burning crosses with the intent to intimidate a person or group of persons, where under the statue, the burning of a cross is prima facie evidence of an intent to intimidate a person or group of persons. In relation to Black, the Court disapproved of the section that burning a cross is prima facie evidence of intent stating that cross burning may mean a person is engaging in constitutionally prescribable intimidation, but it is also seen as core political speech under the first amendment. As such the Court found in Black’s favour. In relation to Elliott and O’Mara the Court held that in burning a cross it has to be proved the defendants intended to intimidate people and if the section that cross burning was prima facie evidence of intent, then the Virginia law would be unconstitutional. As such the Supreme Court returned the case to the Virginia State Court for the retrial of the two men regarding the issue of proving intent. If these were UK cases all the defendants would have been convicted of hate crime.

The UK’s the Anti-Terrorism, Crime and Security Act 2001 amended the Crime and Disorder Act 1998 by introducing racially or religiously aggravated offences. This includes assault and criminal damage, but importantly, it also includes public order and harassment offences. In relation to public order offences is includes racial or religious aggravated disorderly behaviour. In relation to this offence the offender only has to use threatening words or behaviour or disorderly behaviour within the hearing or sight of the victim causing harassment, alarm or distress and it may be committed in public or private. In relation to harassment it covers the offences of harassment and stalking causing alarm or distress and putting a person in fear of violence where the stalking involves fear of violence or serious alarm or distress. In both of these offences no physical assault or to use the words of section 249 of the US’ Hate Crime Prevention Act 2009, no bodily injury is required, only the equivalent of emotional or psychological harm has to be proved under the UK legislation which is alarm, harassment or distress.

Proscribing Extreme Far-Right Groups as Terrorist Organisations

In December 2016 the UK was the first western state to proscribe extreme far-right neo-Nazi groups as terrorist organisations, initially with the group National Action. The groups Scottish Dawn and NS131, which morphed out of National Action, have also been proscribed because their views were seen as exceeding the acceptable parameters of freedom of expression by glorifying and promoting violence. In February 2020 two further extreme far-right groups were proscribed, System Resistance Network (which is spin-off from National Action) and Sonnenkreig Division (that is linked to the US group Atomwaffen). Under section 3 Terrorism Act 2000 the Home Secretary has the authority to proscribe groups as terrorist organisations if that group is concerned in terrorism. Being concerned in terrorism includes if the group:
(a) commits or participates in acts of terrorism;
(b) prepares for terrorism;
(c) promotes or encourages terrorism; or
(d) is otherwise concerned in terrorism.

In relation to promoting or encouraging terrorism, it includes the glorification of the commission or preparation of terrorist acts. For glorification of conduct it is unlawful if persons who become aware of a group’s glorification of terrorist acts as conduct that they should emulate. Under the Terrorism Act 2000 the term ‘glorification’ includes any form of praise or celebration. In determining actions that amount to acts of terrorism, underpinning section is the UK’s legal definition of terrorism which in essence requires the use or threat of action designed to influence a government or an international governmental organisation or to intimidate the public or a section of the public where the action is for the purpose of advancing a political, religious, racial or ideological cause. The action must:
1. Involve serious violence against a person; or
2. Involve serious damage; or
3. Endangers a person’s life (other than the person committing the action); or
4. Creates a serious risk to the health or safety of the public or a section fo the public
The action is not limited to action carried out in the UK, but also includes action outside the UK.

Regarding extreme far-right groups, from the criteria needed to proscribe them it was mainly under promoting or encouraging terrorism as these groups’ virulently racist, anti-Semitic and homophobic comments promote a race war, reject democracy and divided society by, ‘… implicitly endorsing violence against ethnic minorities and perceived race traitors’. The UK government recognised these groups’ online material frequently condoned and glorified those who used extreme violence for political and ideological ends. This was the crucial evidence that led to National Action being the first extreme far-right being proscribed as a terrorist organisation as their website contained phrases such as “gas all traitors” and “fight for your country” and the initial tolerance by the UK government of their narrative ceased with the group’s promotion and encouragement of acts of terrorism following the murder of the MP Joe Cox. In proscribing these groups the former Home Secretary, Amber Rudd said:

National Action is a vile racist, homophobic and anti-Semitic group which glorifies violence and stirs up hatred while promoting their poisonous ideology and I will not allow them to masquerade under different names. … Our priority as a government will always be to maintain the safety and security of families and communities across the United Kingdom and we will continue to identify and ban any terrorist group which threatens this, whatever their ideology.

Since proscribing extreme far-right groups, there have been several successful prosecutions in the UK under its terrorism legislation. This includes in September 2017 eleven members of National Action for various terrorism offences including being members of a proscribed organisation, funding terrorism, possession of terrorism related material and documents, and, preparation of terrorist acts. In June 2018 Jack Renshaw pleaded guilty to being a member of a proscribed organisation (National Action) and plotting to murder Rosie Cooper, a UK Labour Party politician, and threatening to kill the police officer investigating him. In November 2018 a British Army soldier, Lance Corporal Mikko Vehvilainen, was convicted for being a member of National Action and for recruiting other soldiers to join the group in order to prepare for a race war. For social media and electronic communications companies proscribing extreme far-right groups as terrorist organisations creates a clear delineation between speech and expression that is protected under the right to freedom of expression to that which is extremist that glorifies or promotes violence as seen in the UK when these neo-Nazi groups sites were immediately suspended following proscription.

A variety of US extreme far-right groups have existed for many years, including the American Nazi Party and the Ku Klux Klan. These two groups have their websites available in open source and are easy to access, although their social media accounts have been suspended for promoting white supremacy along with hatred towards non-Aryans/whites. Looking at both the American Nazi Party website and KKK websites, they are carefully worded to ensure there is no immediate direct encouragement or incitement to lawless action thereby complying with the US’ first amendment’s protection of freedom of expression and this could be the reason why the US government has not considered proscribing these two groups. However, formed in 2015 Atomwaffen is a US neo-Nazi group that glorifies and advocates violence and through the use of terrorism and guerrilla warfare encourages the overthrow of the US government. Its website contains graphic videos of their activities, including the burning of the US constitution and flag, promoting a ‘race war’ and the group practicing military manoeuvres in a rural area. In 2017 Atomwaffen drew international attention when the group were linked to five murders and a bomb plot, including the murder of a 19 year old Jewish gay Californian student, Blaze Bernstein. At the time of writing, Samul Woodward, who is accused of murdering Bernstein, has pleaded not guilty and the trial is proceeding. At least this extreme far-right inspired crime has been recognised by US authorities as a hate crime and as such should Woodward be convicted of first degree murder it could potentially result in him facing life imprisonment without parole. Even though Atomwaffen pose a threat to state security, the US government has not banned the group as a domestic terrorist organisation. In March 2020 five leading Atomwaffen members were arrested and charged with a variety of federal offences, including threatening journalists and illegal possession of firearms and thousands of rounds of ammunition. Despite all of the arrests and trials related to violent activity, the US government has still not banned Atomwaffen as a terrorist organisation. When you look at the US legal definition of domestic terrorism that includes activities that:
1. involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; or
2. appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
3. occur primarily within the territorial jurisdiction of the United States;

it is submitted that there appears to be no doubt that Atomwaffen’s activities meet this legal definition. However, an anomaly exists with the US compared to most states that ban organisations as terrorist groups, including those examined in this study, in that the US only ban foreign terrorist groups, not domestic groups. The legal criteria for designating groups as terrorist organisations is:
1. The organisation must be a foreign organisation; and
2. The organisation engages in terrorist activity or terrorism or retains the capability to engage in terrorist activity or terrorism; and
3. The terrorist activity or terrorism of the organisation threatens the security of US nationals or the national security of the US.

The process of designating groups as terrorist organisations is in consultation with the Attorney General and Secretary of State of the Treasury, the US Secretary of State can designate foreign entities that he determines have committed or pose a significant risk of committing acts of terrorism that threatens US nationals or national security, foreign policy or economy of the US. By not designating domestic groups as terrorist organisations, the US has created a paradox in that groups like Atomwaffen engages and certainly have the capability to engage in terrorist activity that threatens the security of US nationals. It might be the US government does not feel the need to designate domestic groups and the Federal Bureau of Investigation (FBI) has its own internal definition of legal terrorism which is:

‘Violent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature’.

In addition to this definition guiding FBI investigations into ascertaining if an act is one of domestic terrorism, this will also be a sentencing factor used by the judiciary in sentencing those convicted of violent criminal acts that fits in with that definition in addition to that under the United States Code 18 Part 1 Chapter 113B section 2331(5). To determine if a case is one of domestic terrorism in the US it depends on the weaponry. In the case of Scott in 2015 where he attempted to use a weapon of mass destruction, far-right extremist Scott attempted to kill members of the Muslim community triggered a terrorist investigation. If the perpetrator uses a firearm it is not a case of domestic terrorism, it is prosecuted as homicide or a hate crime. An example of this is seen in the case of Dylann Storm Roof where in June 2015 Roof shot and killed nine African Americans attending a bible study group at the Emanuel African Methodist Church in Charleston, South Carolina. At his trial the prosecution submitted evidence of Roof’s extreme far-right influence that included his website showing photographs of himself with guns, a Confederate flag and symbols of white supremacist movements, his participation on white supremacist platforms including the Daily Stormer and Stormfront and a manifesto he posted his reasons for the attack that included selecting it because of Charleston’s high ration of ‘blacks to whites’ to start a race war, clearly demonstrating this was an attack on a section fo the community, that is the US black community. Even though US politicians and the media referred to the shooting as a terrorist attack, the FBI did not see it as a political act and therefore not a terrorist act, but it was classed as a hate crime. A reason why the US does not designate domestic groups is similar that examined under hate crime, in that the federal government may not want to be seen as restricting the first amendment’s protection of freedom of expression and it on a case by case basis as to whether an act is one of domestic terrorism. While not considering designating any extreme far-right groups, during the race riots occurring in many US cities at the time of writing, accusing them of starting the riots in the street protests at the police killing of African American George Floyd, ironically President Trump is looking to designate the left-wing, anti-fascist group Antifa as a terrorist organization not any of the extreme far-right ones. Maybe President Trump should consider amending the Hate Crime legislation to include emotional or psychological harm and to amend the process of designating domestic groups as terrorist organisations, starting with the American Nazi Party, the KKK and Atomwaffe

Tommy Robinson is Innocent and Not a Nazi?

 

tommy robinson 1

In my blog ‘Tommy Robinson is Innocent?’, posted 22nd July 2018, I discussed issues related to freedom of expression and suggested that Tommy Robinson is not committing hate crime. I based this premise on the fact Robinson does not vilify or blame Islam per se or all Muslims for various crimes and terrorist activity. I suggested that provided he remains within the legal parameters of freedom of expression, he be allowed to continue with his social media profile as well as maintain his website.

tommy robinson 2

Even though many find Robinson’s views and commentary offensive, anything that is offensive, provided it does not glorify or promote violence, can come within what is permitted under freedom of expression. Antifa groups should also come under scrutiny for what they promote, in what they say and in how they conduct themselves at public assemblies. Yesterday (1st August 2018) they gathered outside the Royal Courts of Justice in London chanting that Robinson is ‘Nazi scum’. I disagree with that as Robinson never has nor does advocate national socialism, he is expressing comments on some Muslims and some aspects of Islam that many will find offensive, heretical and provocative. This does not make Robinson an Nazi!

national action at Liverpool

However, I agree it is the neo-Nazis are the main problem in relation to the far-right and they both glorify and provoke violence against non-whites, Slavs, Gypsies, Jews, gay and lesbian people and the state. Already the UK has seen one MP, Jo Cox assassinated by Mair a man influenced by the national socialist narrative in 2016 and an plan to kill another UK MP, Rosie Cooper and the police officer investigating him by National Action member, Jack Renshaw who pleaded guilty to this charge in June 2018. This is addition to many assaults on those the neo-Nazi’s see as targets due to their difference and damage to property.

System Resistance Network

Resistance System Network is the latest UK neo-Nazi group to morph out of the proscribed far-right terroirs group, National Action, where Alex Davies, the founder of National Action, clearly has his fingerprints and DNA all over the group’s activities.

Royal Court of Justice

Yesterday the UK’s Court of Appeal released Robinson on bail from prison where Lord Chief Justice, Lord Burnett ruled that Robinson’s article 6 ECHR right to a fair trial was violated and that his case is to be reheard. Where Robinson overstepped the mark was the cases he was alleged to be reporting had reporting restrictions placed upon them, and breaching that restriction can be held as contempt of court.

Let due process take its course and apply the rule of law (Lord Burnett applied the rule of law in finding the court that sentenced Robinson had erred in law), which is what differentiates a tolerant liberal democracy from a totalitarian state. I reiterate once more, restricting freedom of expression because it is offensive, heretical, unwelcome, irritating or provocative is a move to towards a totalitarian state and we should uphold the decisions in the UK’s High Court in Redmond Bate and the European Court of Human Rights in Handyside v UK.

My terrorism book cover

I cover many of these issues in my book ‘Terrorism: Law and Policy‘ that was published in March 2018 by Routledge.

Tommy Robinson is Innocent? The Far-Right and Freedom of Expression

 

Pegida UK supporters stage silent march in Birmingham

Globally far-right groups are claiming their freedom of expression is being curtailed by the state and various social media companies when they perceive posts are violating their hate speech code. Since Tommy Robinson, the former leader of the English Defence League in the UK and now right wing activist was imprisoned in May 2018, the arrest and subsequent imprisonment has been cited in many video blogs from right-wing commentators globally to show how western states, in particular the UK, are adopting a ‘police state’ approach when it comes to dealing with the far-right. Along with various court cases, this blog looks at freedom of expression legislation in Australia, Canada, the UK and the US and assesses when far-right narratives cross the line from being simply offensive to race hate crime. This is an extract from a peer reviewed academic journal article I have written that is being published soon.

ECHR logous bill of rights

Freedom of Expression

In a liberal democracy freedom of expression is cherished right allowing for a myriad of views to be expressed without fear or sanction from the state and that includes views of the far-right. There has been a movement where people who are offended by comments not in line with their own and, due to their company policies, internet social media providers have become increasingly influential on what can and what cannot be said or, more importantly, what values and beliefs a person can hold in society. This development is dangerously impinging on the right to freedom of expression. In most European countries this right is governed by article 10 in the Council of Europe’s European Convention on Human Rights (ECHR) and article 11 of the European Union’s Charter of Fundamental Rights and Freedoms (CFRF). Both of these rights contain similar wording in that the right includes holding opinions and the right to receive and impart information and ideas without interference from state authorities. Article 11 CFRF adds that freedom and pluralism of the media shall be respected. In the US this right is enshrined in the first amendment of the 1791 Bill of Rights stating that Congress shall not make laws abridging the freedom of speech or the freedom of the press. In Canada section 2 Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression.

Australia does not have a statutory or constitutional charter or Bill of rights as rights and freedoms are protected under common law. As such the courts have the power to provide significant protection of human rights principles. In carrying out this function in Coco v The Queen the Australian High Court restated the principle that Parliament is presumed not to have intended to limit fundamental rights saying:

‘The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.’

In Electrolux Home Products v Australian Workers’ Union Chief Justice Gleeson said:

‘The presumption is not merely a common sense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.’

This presumption includes the principle that fundamental rights are recognised by the common law. Compared to rights protected in statutory form, common law rights are negative rights and can be eroded via statute. This could explain why Australia incorporated the United Nations’ International Covenant on Civil and Political Rights 1966 (ICCPR) in the Australian Human Rights Commission Act 1986. Article 19 ICCPR states everyone has the right to freedom of expression, adding the right includes freedom to speak, receive and impart information of all kinds. It appears that the Australian right to freedom of expression, as does the US Bill of Rights, has no constraints on what and what cannot be said.

In many jurisdciaitons freedom of expression is not an absolute right to say whatever you want. For example, article 10 ECHR is a qualified right where the state can interfere with that right provided it is prescribed in law and necessary in a democratic society when it is:
1. in the interests of national security, territorial integrity or public safety;
2. for the prevention of disorder or crime;
3. for the protection of health or morals;
4. for the protection of the reputation or rights of others;
5. for preventing the disclosure of information received in confidence; or,
6. for maintaining the authority and impartiality of the judiciary.

In the CFRF article 52 allows limitations to this right, but only where it is provided for in law and the limitation is both proportionate and necessary to meet the objects of general interest of the EU or the need to protect the rights and freedoms of others. To put some context into what is acceptable in relation to freedom of expression in law, in the UK case Redmond-Bate v Director of Public Prosecutions Sedley LJ said:

‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’

When interpreting article 10 ECHR the European Court of Human Rights (ECtHR) has adopted a similar view. In Handyside v UK the ECtHR held that freedom of expression is an essential foundation of a democratic society and the right is not only applicable to information or ideas that are favourably received or regarded as indifference or as a matter of indifference, but also to those that offend, shock or disturb the state or any section of the population. The ECtHR has tempered freedom of expression in Erbaken v Turkey saying that tolerance and respect for the equal dignity of all human beings constitute the foundation of a democratic, pluralistic society. The court added:

‘That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …’

In essence, while some will be offended by extremists’ comments, provided those comments do not glorify or provoke violence, or, promote hatred, they have to be accepted as being part of the rich tapestry of views and beliefs that creates a liberal democracy. The issue is assessing when those views, expressions and opinions cross the line of what is acceptable to when it becomes criminal behaviour and falls outside the parameters of what is acceptable under this right.

Differentiating When Far-Right Views Move From Being Simply Offensive, Irritating, Contentious, Eccentric, Heretical, Unwelcome and Provocative to Criminal?

National Action 2Britain-First-badgeAtomwaffen

As social media accounts displaying hate content are suspended or deleted, prima facie there does appear to be credence to the far-right’s claim that freedom of expression is under attack and being curtailed in liberal democracies. This can be seen in the responses and outcry to various comments posted on far-right social media sites or by individuals who are associated or inspired by the far-right narrative where accounts are suspended or individuals are requested, even directed to delete posts deemed to be offensive. When applying the far-right narrative to Sedley LJ’s judgement in Redmond Bate, for many it will be irritating, contentious, eccentric, heretical, unwelcome and provocative. Apart from some neo-Nazi national socialist groups that glorify or advocate violence and expressions that amount to race hate crime, the far-right narrative, as odious as it is, should be allowed in a liberal democracy as should any other extremist narrative that does not advocate violence or hate crime. By doing so the majority will see through the narrative and reject, even ridicule it.

Nick griffinon question time

An example of this was in October 2009 in the UK when the British National Party’s (BNP) former leader Nick Griffin, appeared on the BBC’s Question Time programme. There was outrage that the BBC was allowing Griffin and the BNP a platform to air their views on a high profile programme with a wide audience. Having two elected Members of the European Parliament and large number of elected local councillors at the time, the BNP was seen as a political party that should have a platform to discuss their views. Prior to the programme Griffin boasted his appearance would propel the BNP ‘into the big time’. During the programme Griffin got tied up in knots as he tried to answer questions on various topics, resulting in him being ridiculed and even laughed as people saw through his far right rhetoric, which with each answer Griffin became increasingly incomprehensible. It could be argued this was the start of the demise of the BNP. There are times to let people have their say and in doing so it allows people to see right through their argument, which is what happened on this occasion.

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There are positives in how social media companies are adopting a hard line in what materials posted by groups and individuals they consider to be hateful against others. Twitter actively targets any group or persons who contravene their policy on hateful conduct and a number of US far-right groups have had their accounts suspended. For example, after posting a number of tweets in relation their far-right views, the Traditional Workers’ Party and the American Nazi Party final tweet said, ‘inevitable that we will be banned at the weekend.’ In relation to Britain First, Facebook finally deleted its account in March 2018 because Britain First continually violated Facebook’s Community Standards. Facebook were initially reluctant to delete Britain First’s page as they were cautious about removing political speech with Britain First being a political party. YouTube have also blocked video’s posted by far-right groups and in 2018 YouTube banned the US neo-Nazi group Atomwaffen Division’s YouTube channel for violating YouTube’s hate speech policies, a move that may have been triggered by the fact Atomwaffen have been linked to five murders and an alleged bomb plot in the US.
When dealing with groups and individuals who post comments in line with national socialist ideology and any other forms of extremist ideology such as Islamist views, social media companies should be applauded for taking this action. The problem comes when what is deemed as contravening the companies’ hateful conduct policy because they deem it offensive, contentious or provocative, but is legal under the freedom of expression. An example of how freedom of expression in the UK is potentially being fettered is how social media companies, mainstream media and UK state agencies have dealt with Tommy Robinson. In April 2016 Twitter permanently suspended Robinson’s account after he tweeted ‘Islam promotes killing people’. In the tweet Robinson was referring to a hundred verses in the Qur’an that incites Muslims to violence against non-Muslims. Due to the content of these tweets, Twitter said they violated its policies on hateful conduct. This raises the question if Robinson’s suspension is an example of social media companies, outside a court of law, restrict freedom of expression and decide what can and cannot be expressed. This is a serious step as these companies are in effect taking the law into their own hands. The suspension of Robinson’s account can be differentiated with Twitter’s suspension of Britain First’s Twitter account and that of its leaders.

Jayda Fransen court case

In relation to Britain First, Paul Golding and Jeyda Fransen, the content of their tweets were written with intent to spread, incite, promote or justify hatred against Muslims based on an intolerance of their religion, which would fall under the parameters of race hate crime. No one would question the decision of social media companies to delete or suspend groups who express views glorifying or influencing individuals to carry out acts of violence. This seems to be the situation with Atomwaffen as the influence far-right social media accounts can have on vulnerable individuals cannot be overestimated. In relation to Britain First, it was a phrase Thomas Mair shouted as he shot the MP Jo Cox. Also, the behaviour and criminal actions of Britain First’s leaders could have been a factor in Twitter and Facebook suspending the accounts of the group and its leaders. Darren Osbourne was convicted of terrorist related murder and attempt murder after driving a van in Muslim worshippers outside Finsbury Park in June 2017. During his trial in February 2018 evidence was given revealing in the weeks before the attack that among others far-right sites, Osborne was following Britain First and Tommy Robinson on social media claiming it influenced him to carry out the attack. When being interviewed by the mainstream media, in his writings and on his social media sites, Tommy Robinson has always been careful never to accuse all Muslims or Islam per se as responsible for terrorist acts or criminal activity. As Sedley LJ said in Redmond Bate, ‘Freedom only to speak inoffensively is not worth having’.

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Especially in relation to Tommy Robinson the debate on whether the UK authorities are restricting the right to freedom of expression is ongoing. In May 2018 Robinson was recording live on his Facebook account outside Leeds Crown Court coverage of a trial involving Muslim defendant’s accused of grooming, raping and sexually abusing young girls. He was arrested for causing a Breach of the Peace and later imprisoned for contempt of court where it was claimed he made comments that risked the trial to collapse. At the time of his sentencing Robinson was serving a suspended sentence for contempt of court during an earlier rape trial at Canterbury Crown Court. Perceived as the UK restricting freedom of expression, Robinson’s imprisonment resulted in protests in June 2018 in Whitehall, London, a change.org petition for his release that received nearly 500,000 signatures and given support from Donald Trump junior who said, ‘Don’t let America follow in these footsteps’, as well as Geert Wilders posting a video on his Twitter account calling Robinson’s imprisonment ‘an absolute disgrace’. Robinson’s imprisonment has also internationally galvanised other right wing activists such as Lauren Southern in Canada and Black Pigeon in the US. Both have YouTube channels that attract many views. On the topic of Robinson’s imprisonment Black Pigeon’s video blog attracted 174,600 views and Lauren Southern’s attracted over 800,000 views with comments mostly supporting Robinson. In Tommy Robinson’s case he has not glorified or encouraged violence and as obnoxious as they are, he has literally posted his observations on how he sees various situations.

Two examples of how comments come outside the parameters for freedom expression can be seen in two ECtHR cases. In Norwood v UK Norwood was a Regional Organiser for the BNP and between November 2001 and January 2002 he displayed a large poster in the window of his flat with a photograph of New York’s World Trade Centre in flames with the words ‘Islam out of Britain – Protect British People’. Following a complaint the police removed the poster. Failing in the UK courts that his freedom of expression had been curtailed, Norwood appealed to the ECtHR. The Court found no violation of article 10 ECHR saying the poster was a vehement attack on a religious group, intimating the group as a whole were involved in an act of terrorism. In Berkacam v Belgium Berkacam was the leader and spokesperson of the organisation ‘Sharia4Belgium’ where he made remarks on YouTube videos that incited others to hatred, violence and discrimination towards non-Muslims. The ECtHR held the comments were incompatible with the ECHR’s values of tolerance, social peace and non-discrimination. In both of these cases the comments were aimed at a whole group, not individuals within a group, holding the whole group as responsible for various acts. This is why Britain First’s social media content would be outside the bounds of freedom of expression and rightly contravene the social media companies’ policies on hateful content as they portray Islam and all Muslims as an evil in society. In relation to Tommy Robinson this is not the case. He never says all Muslims or Islam as a whole is to blame for problems in the UK only particular Muslims who commit either terrorist or criminal offences. His main argument is little mainstream media coverage is given to certain trials involving Muslim suspects, especially in sexual offence trials. Admittedly he has strident views on Islam that could be seen as heretical, but they would fall within the legal parameters of freedom of expression. Using the imprisoning and harassing of Robinson only fuels the flames of complaint by the far-right their freedom of expression is being curtailed by the state. To take back control of the far-right’s position on this argument it might be preferable, when not glorifying or encouraging violence, or inciting race hate, to allow far-right activists like Robinson to continue to use their social media sites. Returning to the example of Nick Griffin on the BBC’s Question Time programme, one should not be fearful of providing them with a platform to air their views as most people will see through the arguments they make. However, if they cross the line into hate crime that is a different matter.

My terrorism book cover

Issues related to this can be found in my book published in March 2018 ‘Terrorism: Law and Policy’ by Routledge

Freedom of Expression Allows a Person to Speak Offensively: If You Are Easily Offended Don’t Read This!

Center_Parcs logoDaily Mail logo

 

 

 

In the UK the holiday company Center Parcs have stopped advertising in the UK newspaper, The Daily Mail. The decision was made following a comment article by one of the newspaper’s columnists, Richard Littlejohn who was critical of a married gay couple (one partner of whom is the UK’s diving athlete Tom Daly) announcing they were expecting a child. In the article Littlejohn claims that children benefit most from being raised by a man and a woman. In making this decision, Center Parcs were responding to a complaint from a person who tweeted in effect that by advertising in the Daily Mail Center Parcs was supporting homophobia. Closely following this decision, London’s Southbank Centre announced it would no longer be advertising in the Daily Mail as the newspaper’s values were not compatible with those of the Southbank Centre.

ECHR logous bill of rights
There has been a movement where people who are offended by comment’s not in line with their own and express this on the likes of social media is gathering increasing influence on what and what cannot be said, printed or, more importantly, what values and beliefs a person can hold in society. In a liberal democracy such moves are dangerously impinging on a very important right, the right to freedom of expression. In most European countries this is governed by article 10 European Convention on Human Rights (ECHR) and article 11 European Union’s Charter of Fundamental Rights and Freedoms. In the US this right is enshrined in the first amendment of the 1791 Bill of Rights and in Canada under section 2 Canadian Charter of Rights and Freedoms. In 1980 Australia incorporated the United Nations’ international Covenant on Civil and Political Rights 1966 (ICCPR) which was scheduled in the Australian Human Rights Commission Act 1986. Article 19 ICCPR states everyone has the right to freedom of expression, adding the right includes freedom to speak, receive and impart information of all kinds.
This is not a carte blanche right to say whatever you want. For example article 10 ECHR is a qualified right where the state can interfere with that right when it is prescribed in and law and necessary in a democratic society when it is:

1. in the interests of national security, territorial integrity or public safety;
2. for the prevention of disorder or crime;
3. for the protection of health or morals;
4. for the protection of the reputation or rights of others;
5. for preventing the disclosure of information received in confidence; or,
6. for maintaining the authority and impartiality of the judiciary.

To put some context into what is acceptable in relation to freedom of expression Lord Justice Sedley said in the UK case Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733:

‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’ ([My emphasis]

In essence, provided what a person says does not provoke violence, if it offends you it does not violate the right to freedom of expression. Like many others I am offended by comments such as those espoused by Islamist groups like Islamic State or Al Qaeda or those espoused by extreme far right groups, views expressed by certain politicians and pressure groups. Provided that comments I see as offensive do not glorify or provoke violence I accept them as being part of the rich tapestry that creates a liberal democracy and as such I would always advocate it is important for them to have their right to expression and views. Today I notice that from politicians to senior managers of public and private companies they are guarded in what they say for fear of offending the easily offended. Another problem for me is how the views of the easily offended is represented in various social media sites. I have noticed for example in fear of offending Twitter followers or Facebook friends there is a degree of acquiescing to others’ views.

Nick griffinon question time

In 2009 the far right political party, the British National Party’s leader Nick Griffin appeared on the BBC’s Question Time programme, There was an outrage that the BBC was allowing this due to the (and I quote Sedley LJ) the heretical, the unwelcome and the provocative views held by Griffin and his party. In my view I was pleased the BBC allowed this as I knew that on this type of programme he would make a fool of himself and people would see Griffin for the bigoted racist he is. Griffin did get tied up in knots resulting in his views becoming incomprehensible and basically a laughing stock. It could be argued this was the start of the demise of the BNP. There are times to let people have their say and in doing so it allows people to see right through their argument, which is what happened on this occasion.

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What did Littlejohn say in his Daily Mail column that has caused Center Parcs and the Southbank Centre to withdraw their adverts in the newspaper, along with the pressure group Stop Funding Hate to regularly tweet the names of companies that advertise in the Daily Mail? In the article Littlejohn said he supported civil partnerships, and would prefer a child to be fostered by loving gay couples rather than be condemned to rot in state-run institutions. He added, ‘That said, and despite the fact that countless single parents do a fantastic job, I still cling to the belief that children benefit most from being brought up by a man and a woman’. While I disagree with the latter part of this comment, one can see he is trying to balance his view and in no way is he provoking violence.

Personally I do not agree with the journalistic content of the Daily Mail. For many years it has always run contentious articles and its slant on its news reports has been equally contentious. This is a polite way of saying I get offended by what is regularly reported in the Daily Mail and I disagree with a lot of its commentary. By preventing companies from advertising in the Daily Mail is this in effect saying that Daily Mail readers are prohibited from taking various services or purchasing certain goods, such as in this case is Center Parcs saying that Daily Mail readers are not welcome at its venues? Even the newspaper I regularly read, I do so with a questioning mind as to its sources and reliability in reporting due to the bias held by the editor and the newspaper’s proprietors. In a liberal democracy it is important to have a free press and in doing so that means accepting that the Daily Mail has a right to exist and publish its views just like other newspapers, but you don’t have to buy it or visit their website. I suggest that when appropriate stop being so easily offended and laugh at some of the outlandish and ludicrous reporting in the likes of the Daily Mail.