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New Study on the Limits of the Criminal Speech Act
In recent years, the number of reported hate speech cases in Norway have increased significantly. In the media, legal commentators have used terms such as “not qualified as offensive” to explain dismissals in high-profile hate speech cases, and the courts frequently underline that there should be a “relatively spacious margin for distasteful speech”. What kind of threshold for criminal liability do these formulations describe?
In a recent article, we analyze where and how criminal courts draw the boundaries for hate speech based on a person’s “skin color or origin” or “religion or belief” under section 185 (lit. a and b) of the Norwegian Penal Code. We find that the courts draw boundaries for the criminality of hate speech acts particularly with regards to the specific words used, the context in which the speech was uttered, and who the speech was directed at. In closing, we discuss the potential societal impact of the courts’ selective prosecution of hate crime cases.
Protection of Freedom of Expression
Our study confirms the strong protection of freedom of expression. It particularly extends to resourceful and well-articulated racists, who — under the guise of their freedom of expression and lawful religious criticism — may maneuver on the legal side of distasteful hate speech. The more pitiful “everyday racist,” however, who hurls rude racist slurs at passers-by, more easily gets convicted. The threshold for criminal liability is lower in the latter cases, because such speech is considered harassment, only. Because it is not part of a public exchange or political debate, it is not protected under the law.
Considering the initial purpose of Section 185 of the Penal Code, “to combat racial prejudice by protecting vulnerable groups from hatred and insults”, it is striking – as the Commission for Freedom of Expression also points out – that those speech acts with the greatest potential for harm are the most protected ones.
Do Civilians Have Weaker Legal Protection Than Uniformed Personnel?
In 40 % of the court cases we investigated (28/70), the offended parties were at work when defendants targeted them with hateful speech acts. In 21 cases, the offended party either were police officers, security guards or bouncers at clubs or bars. The overrepresentation of people who were at work when they were subjected to hate speech in the court cases likely have several explanations: they may be exposed to more hate at work, they may have a lower threshold for reporting criminal offences that affect them in the course of their duties, or the prosecution authorities may have a lower threshold for bringing charges against such crimes – or a combination of the three.
In the judges’ assessments of speech acts directed at victims who are at work, the line of work is a central element in their legal reasoning. According to the courts, harassment affects these (uniformed) complainants while they are performing social duties, and because they are at work, they cannot avoid the situation.
Most of the occupations represented have an almost inherent exposure to drunk and/or frustrated individuals who resort to harsh language because the (uniformed) complainants – by virtue of their position – sanction the perpetrator’s behavior, typically in a public area or a bar. Yet, the courts seem not to acknowledge or recognize that civilians who are affected by similar hateful language, are targeted while they are simply living their lives, often completely unprovoked and similarly, without any possibility to avoid such situations.
Do Children and Youth Have Weaker Legal Protection Than Adults?
Several court cases deal with statements made against children. In some cases, children who were exposed to hate speech were considered an offended party and were thus awarded compensation. In other cases, children are understood as bystanders and were thus not entitled to compensation, even if the hate speech was directly targeting them. It is unclear what assessments the prosecution and courts make in their evaluation of hateful speech acts directed at children.
In the courts’ assessment of the “relatively spacious margin for distasteful speech” they must take into account the victim’s age: the margins of legality are narrower for speech directed at children. However, we find cases where the defendant’s judgment of targeted children’s age appearance impacts the courts’ assessment.
In one case, the defendant was acquitted because he claimed that he did not understand that the offended party was a minor. By acknowledging the defendant’s logic, the court shifted responsibility onto the victim, introducing a new logic: children must then inform perpetrators of their age to be sure to avoid weakened legal protection.
Is the Threshold for Bringing Charges Too High?
The cases that end up in court have been through several preceding stages of selection. Only a small proportion of hateful speech cases are reported, many reports are dismissed by the police and prosecution, and few cases ultimately reach the judiciary. The cases brought to trial are thus likely just covering a fragment of the universe of hate speech experienced in society.
Previous research also shows that court judgments may influence police decisions to investigate hate speech and hate crime. Indeed, there may exist a mutual reinforcement: the courts only handle prosecuted cases, and the police and prosecution drop cases that lack precedents before the courts. One might therefore raise the question of whether the prosecution is selecting cases too harshly, thereby inhibiting a legal clarification of what the boundaries actually are for criminal liability in the much larger portion of cases that are never tried in court.
Our study contributes to a broader knowledge basis for discussing judicial practice in hate speech cases from a non-legal perspective. Yet, although 90 % of the cases we examined resulted in convictions, legal practice — and the courts’ assessments of where the line is drawn between legal and criminal hate speech — remains difficult to predict.
It remains important to remember that criminal justice does not address the wider social conditions that make hateful speech and racism possible; these lie beyond the mandate of the law and courts. The way that the courts define, understand, and handle hateful speech may therefore appear disconnected from people’s everyday experiences of hate, harassment and racism. This raises overarching questions about the potential role that the courts may play, and should play, in society’s response to racism as a social problem.
This text is a translated version of a blog entry that was first published on forskning.no.
The full article on which this blog entry is based can be read here.
