INTERNET INTERMEDIARIES’ LIABILITY FOR ONLINE ILLEGAL HATE SPEECH

Considering the prevalence of online hate speech and its harm and risks to the targeted people, democratic discourse and public security, it is necessary to combat online hate speech. For this purpose, internet intermediaries play a crucial role as new governors of online speech. However, there is no universal definition of hate speech. Rules concerning this vary in different countries depending on their social, ethical, legal and religious backgrounds. The answer to the question of who can be liable for online hate speech also varies in different countries depending on the social, cultural, history, legal and political backgrounds. The First Amendment, cyberliberalism and the priority of promoting the emerging internet industry lead to the U.S. model, which offers intermediaries wide exemptions from liability for third-party illegal content. Conversely, the Chinese model of cyberpaternalism prefers to control online content on ideological, political and national security grounds through indirect methods, whereas the European Union (EU) and most European countries, including Germany, choose the middle ground to achieve balance between restricting online illegal hate speech and the freedom of speech as well as internet innovation. It is worth noting that there is a heated discussion on whether intermediary liability exemptions are still suitable for the world today, and there is a tendency in the EU to expand intermediary liability by imposing obligation on online platforms to tackle illegal hate speech. However, these reforms are again criticized as they could lead to erosion of the EU legal framework as well as privatization of law enforcement through algorithmic tools. Those critical issues relate to the central questions of whether intermediaries should be liable for user-generated illegal hate speech at all and, if so, how should they fulfill these liabilities? Based on the analysis of the different basic standpoints of cyberliberalists and cyberpaternalists on the internet regulation as well as the arguments of proponents and opponents of the intermediary liability exemptions, especially the debates over factual impracticality and legal restraints, impact on internet innovation and the chilling effect on freedom of speech in the case that intermediaries bear liabilities for illegal third-party content, the paper argues that the arguments for intermediary liability exemptions are not any more tenable or plausible in the web 3.0 era. The outdated intermediary immunity doctrine needs to be reformed and amended. Furthermore, intermediaries are becoming the new governors of online speech and platforms now have the power to curtail online hate speech. Thus, the attention should turn to the appropriate design of legal responsibilities of intermediaries. The possible suggestions could be the following three points: Imposing liability on intermediaries for illegal hate speech requires national law and international human rights norms as the outer boundary; openness, transparency and accountability as internal constraints; balance of multi-interests and involvement of multi-stakeholders in internet governance regime.     

‘Won’t Somebody Please Think of the Children?’ Hate Speech,Harm, and Childhood

Some authors claim that hate speech plays a key role in perpetuating unjust social hierarchy. One prima facie plausible hypothesis about how this occurs is that hate speech has a pernicious influence on the attitudes of children. Here I argue that this hypothesis has an important part to play in the formulation of an especially robust case for general legal prohibitions on hate speech. If our account of the mechanism via which hate speech effects its harms is built around claims about hate speech’s influence on children, then we will be better placed to acquire evidence that demonstrates the processes posited in our account, and better placed to ascribe responsibility for these harms to individuals who engage in hate speech. I briefly suggest some policy implications that come with developing an account of the harm of hate speech along these lines.

     

Dignity, Harm, and Hate Speech

This paper examines two recent contributions to the hate speech literature – by Steven Heyman and Jeremy Waldron – which seek a justification for the legal restriction of hate speech in an account of the way that hate speech infringes against people’s dignity. These analyses look beyond the first-order hurts and disadvantages suffered by the immediate targets of hate speech, and consider the prospect of hate speech sustaining complex social structures whose wide-scale operations lower the social status of members of targeted groups. In Heyman’s and Waldron’s accounts we find plausible insights into the nature of identity-based social hierarchies, and the harms that redound to subordinated people under the operations of such hierarchies. I argue, however, that both analyses are unsuccessful as justifications for the restriction of hate speech, because they do not ultimately provide reason to think that hate speech is responsible for creating or sustaining identity-based social hierarchies.     

Tough-on-Crime Tolerance: The Cultural Criminalization of Bigotry in the Post-Civil Rights Era

This article extends critical scholarship on the problem of hate crimes in the U.S. into the field of cultural criminology. Highlighting the role cultural production plays in reinforcing identity-based social harms, this study analyzes the cultural construction of the figure of the white hate crimes perpetrator, or “the hater.” The article integrates findings from a comprehensive discourse analysis of major U.S. news sources from 1986 to 2010 with insights from the fields of whiteness studies and critical criminology. The study first finds that the figure of the hater embodies modern day bigotry through terse stereotypes about white poverty, masculinity, hate group membership, and criminality. It then argues that these widely distributed discursive performances create rhetorical opportunities to define bigotry as an individualized problem with law enforcement remedies and to further normalize extreme hate crimes cases. Ultimately, a new theoretical construct, “post-difference ideology,” is mobilized to challenge the hater’s prescribed role as folk devil.     

Motive,Action, and Confusions in the Debate over Hate Crime Legislation

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does not see motives as constituent parts of complex actions. If we are going to have hate crimes legislation, there are no good formal reasons keeping us from having distinct offenses for hate crimes or from having ones defined in terms of group animus. My goal is to clear up a number of action-theoretical confusions that have led some theorists and jurists to raise objections that draw attention away from the real crux of the debate over hate crime legislation. Initially, I defend several considerations that weigh against an understanding of hate crimes legislation as being concerned exclusively or even primarily with character, belief, or motive. These considerations in turn help undercut the related concern that hate crime legislation violates free speech protections.     

Hate Speech and the Epistemology of Justice

In ‘The Harm in Hate Speech’ Waldron’s most interesting and ground-breaking contribution lies in a distinctive epistemological role he assigns to hate speech legislation: it is necessary for assurance of justice, and thus for justice itself. He regards public social recognition of what is owed to citizens as a public good, contributing to basic dignity and social standing of citizens. His claim that hate speech in the public social environment damages assurance of justice has wider implications, I argue: for hate speech conducted in private; for pornography; and indeed for any speech that thwarts knowledge of what justice requires.     

What is hate speech? Part 1: The Myth of Hate

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred.     

What is Hate Speech? Part 2: Family Resemblances

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred.     

Logic,licensing and public relations

This article focuses on the need to move past First Amendment concerns to foster a meaningful debate about the licensing of public relations practitioners. Whether, and to what extent, public relations should be licensed is not the subject of this discussion. Instead, this article uses Aristotelian logic to dispute the spurious conclusion that any licensing scheme for public relations work and / or the individuals who perform it is unconstitutional on its face. Relying on First Amendment jurisprudence, the article demonstrates that some restraints on speech in the form of licensing are allowed, that not all public relations work involves protected speech or press, that there is a similarity to the constitutionally permitted licensing of certain speech‐related professions and that a hypothetical case can be constructed regarding those who could qualify as licensed public relations counsel. The article concludes that the First Amendment does not necessarily prevent licensing certain public relations practitioners.     

从自由到平等:美国言论自由的现代转型

自1960年代开始,美国言论自由开启了从经典时期向现代的转型。在色情作品、仇恨言论和竞选经费三个领域,言论自由分别与性别平等、种族平等和财富平等正面相遇。通过把"平等"价值引入言论自由这一转型,使色情作品、仇恨言论和竞选经费从单纯的自由问题变为平等与自由间的平衡;同时,为了促进平等,它还强调法律和政策应告别形式中立,必须向弱势群体有所倾斜。这一转型相当于一场言论自由的"新政",终结了言论自由的洛克纳时代,重塑了言论自由的范式和议程,并对当代言论自由的发展产生持续和深远的影响。     

The Effects of Civil Hate Speech Laws: Lessons from Australia

This article examines the effects of hate speech laws in Australia. Triangulating data from primary and secondary sources, we examine five hypothesized effects: whether the laws provide a remedy to targets of hate speech, encourage more respectful speech, have an educative or symbolic effect, have a chilling effect, or create “martyrs.” We find the laws provide a limited remedy in the complaints mechanisms, provide a framework for direct community advocacy, and that knowledge of the laws exists in public discourse. However, the complaints mechanism imposes a significant enforcement burden on targeted communities, who still regularly experience hate speech. We find a reduction in the expression of prejudice in mediated outlets, but not on the street. We find no evidence of a chilling effect and we find the risk of free speech martyrs to be marginal. We draw out the implications of these findings for other countries.     

Legal Weapons for the Weak? Democratizing the Force of Words in an Uncivil Society

First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial "hate speech." I argue that this stalemate can be overcome by considering a more expansive theory of the "force of words" and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech     

Stereotypical Hate Crimes and Criminal Justice Processing: A Multi-Dataset Comparison of Bias Crime Arrest Patterns by Offender and Victim Race

Many hate crimes are not reported and even fewer hate crimes result in an arrest. This study investigates patterns of victim reporting and arrest for hate crimes in two parts. First, using data from the National Crime Victimization Survey, we find that, controlling for offense severity, hate crimes are less likely than non-bias crimes to be reported to the police and that the police are less likely to take further action for hate crimes, compared to non-hate crimes. Second, we use data from the Pennsylvania Human Relations Commission and the National Incident-Based Reporting System to compare differences between types of hate crimes in the likelihood of crime clearance. We find that those hate crimes most likely to result in arrest are those that fit the profile of a “stereotypical” hate crime: violent incidents, incidents committed by hate groups, and incidents involving white offenders and black victims.     

Deadly Words: State Power and the Entanglement of Speech and Violence in Hate Crime

Any analysis of hate crime that attempts to separate speech from action, language from violence, faces epistemological difficulties that limit the range of conversations about laws responding to identity-based injury in the United States. Active debates have raged over the implications of bias crime sentence enhancement laws for the protection of ‘freespeech’, thus addressing the inextricability of language and meaning from hate crime. Those in favor of legal responses to identity-based injury tend toward essentialist claims which assume the stability of identity and of meanings inherent in words or actions. Those opposed assert the impossibility of codifying the meaning of words or actions in the law, and/or they worry about the reification of (victimized) identities accompanying bias crime statutes. This article argues that the focus on language and speech in these debates simultaneously enables an evasion of discussion about the law's response to bias-related violence, and misleadingly assumes too much stability in the functions of law and the nature of state power. Interviews conducted by the author with individuals involved in a 1992 racist hate crime are used to show the diverse elements of state power suffusing the incident and its aftermath. An analysis of the crime's investigation and prosecution under a Maryland hate crime statute suggests that law enforcement officers are primarily using hate crime laws as public relations tools in a fight against community perceptions that they are themselves bigots. This revised version was published online in July 2006 with corrections to the Cover Date.     

A hypothetical neurological association between dehumanization and human rights abuses

Dehumanization is anecdotally and historically associated with reduced empathy for the pain of dehumanized individuals and groups and with psychological and legal denial of their human rights and extreme violence against them. We hypothesize that ‘empathy’ for the pain and suffering of dehumanized social groups is automatically reduced because, as the research we review suggests, an individual''s neural mechanisms of pain empathy best respond to (or produce empathy for) the pain of people whom the individual automatically or implicitly associates with her or his own species. This theory has implications for the philosophical conception of ‘human’ and of ‘legal personhood’ in human rights jurisprudence. It further has implications for First Amendment free speech jurisprudence, including the doctrine of ‘corporate personhood’ and consideration of the potential harm caused by dehumanizing hate speech. We suggest that the new, social neuroscience of empathy provides evidence that both the vagaries of the legal definition or legal fiction of ‘personhood’ and hate speech that explicitly and implicitly dehumanizes may (in their respective capacities to artificially humanize or dehumanize) manipulate the neural mechanisms of pain empathy in ways that could pose more of a true threat to human rights and rights-based democracy than previously appreciated.     

When a Commercial is Not a Commercial: Advertising of Violent Entertainment and the First Amendment

The September 2000 release of the Federal Trade Commission's report on the marketing of violent entertainment to children ignited the latest of many rounds of policy debates on violent entertainment and its effects on children. Parties on both sides of the debate have cited the First Amendment as limiting what the government can do to legally restrict the marketing of violent entertainment products to children. However, little detailed analysis of just how the First Amendment would apply to any such marketing restrictions has been presented. That is the subject this article takes up. First, it looks at the First Amendment standard of review applied to restrictions on commercial speech. The article also considers whether violent speech, in either entertainment programming or its advertising, may be restricted under the First Amendment. Finally, this article examines whether the advertising of violent entertainment products is entitled to the same level of First Amendment protection afforded to the products being advertised.     

英国2013诽谤法对ISP的最新规定及对我国的启示

2013年英国颁布了诽谤法修正案,其第5条对ISP进行了有针对性的立法,以ISP是否对发布的内容有影响或控制为标准,将ISP分为两类,并适用不同的责任构成,将通知即删除原则成文化,同时制定了明确的适用的规则。其总体方向是在坚持传统的基础上,确保法律与时俱进并且适用;在平衡言论自由与名誉权的基础上,寻求在最大程度上保护ISP而不是承担责任。英国2013诽谤法使我们从现实合理性方面审视我国网络诽谤立法及ISP现状,据此提出《侵权责任法》第36条第3款的修改意见及我国将来的网络诽谤立法或司法适用的一些基本原则。     

The Complexity of Hate Crime and Bias Activity: Variation across Contexts and Types of Bias

Are racially-motivated hate crimes, non-criminal bias incidents, and general forms of crime associated with the same structural factors? If so, then social disorganization, a powerful structural correlate of general crime, should predict rates of hate incidents. However, tests of social disorganization’s effects on racially-motivated hate crime yield inconsistent results. This study uses data from the Pennsylvania Human Relations Commission (PHRC) to explore such inconsistencies. Specifically, we assess the effects of social disorganization across contexts and types of bias motivation using bias incidents over 12 years. The results suggest that (a) social disorganization, particularly residential instability, is robustly correlated with rates of both hate crime and other prejudicial conduct, and that (b) the interactive effects of social disorganization help explain variations in incident rates by motivation type. Specifically, anti-black incidents are most frequent in unstable, homogeneous (i.e. white) and advantaged communities, while anti-white incidents are most frequent in unstable, disadvantaged communities.     

Hate Thy Neighbor: Lessons for Neighborhood Integration for the Post‐Obama Era and Beyond

This essay explores contemporary racial harassment, hate crimes, and violence targeted at African Americans and other racial minorities who have moved to white neighborhoods in the 1990s and 2000s, as described in my book Hate Thy Neighbor: Move In Violence and the Persistence of Segregation in American Housing. The essay details the experiences of blacks, Latinos, and Asian Americans who face race‐based hate crimes upon integrating white neighborhoods. This violence is not limited to a specific geographic area of the United States, and is an important factor in continuing patterns of racial segregation. Social segregation and the failure of existing law to address this violence are important factors in its survival. Analyzing the roots and causes of such violence, the essay calls for greater attention to the enforcement of legal remedies designed to address neighborhood hate crime.