January 15, 2010
An Analysis of Holocaust Denial as Hate Speech
Recently Facebook confirmed that it has disabled a group called "I Hate Muslims in Oz." Barry Schnitt explained: "We disabled the ‘I Hate Muslims in Oz’ group… because it contained an explicit statement of hate. Where Holocaust-denial groups have done this and been reported, we’ve taken the same action".
Facebook distinguishes between "explicit statement of hate" and Holocaust denial. Its directors believe that Holocaust denial is not hateful per se and does not therefore contravene the company’s terms of service. The terms of service say: "You will not post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence". Schnitt said: "We're always discussing and evaluating our policies on reported content, but have no plans to change this policy at this time. In addition to discussing it internally, we continue to engage with third-party experts on the issue".
In this short piece I wish to take issue with the assertion that Holocaust denial is not hateful per se. My aim is to show that it is, and therefore that Facebook should reconsider its position. All Internet providers and web-hosting companies whose terms of service disallow hateful messages on their servers should not host or provide forums for such hate-mongering. This is of urgent need as Holocaust denial is prevalent in Europe, the United States, and across the Arab and Muslim parts of the world. Iran's regime, under the disputed leadership of President Mahmoud Ahmadinejad, has made questioning the Holocaust one of the centerpieces of its radical ideology, brazenly proclaiming falsehoods about one of the most thoroughly documented periods in history. In December 2006, he convened an "International Conference Review of the Holocaust: Global Vision" designed to address the "need" to establish whether the Holocaust actually happened. Ahmadinejad’s Holocaust denial is accompanied by outrageous statements, such as Israel should be "wiped out from the map", and by controversial nuclear policy. Hateful words are part of a calculated strategy to denounce Israel and bring about a "World without Zionism". e "need" to establish whether the Holocaust actually happened. Ahmadinejad’s Holocaust denial is accompanied by outrageous statements, such as Israel should be "wiped out from the map", and by controversial nuclear policy. Hateful words are part of a calculated strategy to denounce Israel and bring about a "World without Zionism".
The Prophet Mohammed Controversy and EU Freedom of Speech Norms
Flemming Rose’s decision to run twelve cartoons of the Prophet Mohammed triggered an international controversy. In defending his decision, Rose relies on two arguments: (1) the cartoons were a necessary response to a growing atmosphere of self-censorship imposed by a totalitarian radical Islam and (2) the cartoons - far from being insulting - were actually a way to include Danish Muslims into a national “tradition of satire.” On examination both arguments are problematic. The fear of totalitarian censorship - if even it applies to Muslims - fits poorly with an American free speech discourse that counsels patience, not action in the face of totalitarian threats. Rose’s reference to a “tradition of satire” is rooted in the Danish practices of social informality (hygge) and teasing, But this argument is undercut by Rose’s own anti-immigrant rhetoric as well as the larger anti-immigrant mood in Denmark and Europe.
Download the paper from SSRN at the link.
Reargument In Fox v. FCC Case Heard January 13, 2010Reargument in the Fox v. FCC (2nd Circuit) case ("fleeting expletives") (via CSPAN).
January 14, 2010
Prince William's Girlfriend Claims Photog Invaded Her Privacy Over HolidaysKate Middleton is apparently pursuing a claim for invasion of privacy against a photographer who took pictures of her and her family on Christmas Day, and also against the distributors of the photos. The pictures have not as yet been published in the UK media. Queen Elizabeth II had last year warned the media about invading the privacy of the Royal Family and persons in their circle; Ms. Middleton is the current girlfriend of Prince William, the elder son of the Prince of Wales.
Actor Antwon Tanner Sentenced To Three Months For SSN Scheme"One Tree Hill" star Antwon Tanner has been sentenced to three months in prison and five months of home confinement after pleading guilty to selling Social Security numbers to an undercover officer. His attorney Gregory Watts said Mr. Tanner was under financial pressure at the time, having lost his home in a foreclosure proceeding. The judge could have sentenced him to a year in prison. Read more here and here. Here's more from the E! Online blog. It's unclear whether Mr. Tanner will return to "One Tree Hill" next season.
January 13, 2010
Supreme Court Votes 5-4: No Cameras at Prop 8 Trial
From the Blog of Legal Times: the Supreme Court has voted 5-4 to block televising proceedings of Perry v. Schwarzenegger, the Proposition 8 trial, to other courthouses. Dissenters: Breyer, Stevens, Ginsburg, and Sotomayor.
Google Unhappy Over Chinese Situation, Threatens To Pull Out of MarketGoogle is threatening to pull out of the Chinese market, citing cyberattacks. Read more in a New York Times article, and hear about the dispute in a phone discussion with Jason Dean on CSPAN.
Roman Polanski In Court Over Photos; Say They Invade His PrivacyDirector Roman Polanski is taking the French media to court over photographs that show him in his home under house arrest after his release from a Swiss jail. He claims the pictures invade his privacy. The papers that have printed the photos say they are newsworthy. Read more here.
Battle of the Late Night Network StarsConan O'Brien is indicating that he is unhappy with the proposed return of Jay Leno to NBC late night TV. Enter the lawyers?
Incitement To Genocide and the Trial of Simon Bikindi
The promise to “never again” allow the crime of genocide is often made, although promises alone were not enough to protect the victims in Srebrenica and Kigali. Legal concepts such as universal jurisdiction and the Responsibility to Protect are being used, or at least considered, as ways to uphold this promise, but the Genocide Convention still remains the main means of protection. One of the Convention’s tools of prevention and punishment is the criminalization of “direct and public incitement to commit genocide.” The meaning of these seven controversial words will help decide where the international community draws the line between preventing the crime of crimes and protecting the fundamental right of free speech.
The claims of genocide are increasing, while advocates are pushing for expanding the Convention’s boundaries. No one wants to allow the next genocide. No one wants to allow perpetrators to escape punishment. This does not mean that in striving towards “never again” we sacrifice free speech as a casualty of war. Freedom of speech is “the indispensable condition of nearly every other form of freedom.” A vague or overly expansive interpretation of incitement will be abused and misused by dictators in silencing artists, journalists, and genuine political opposition. A limited, well-defined interpretation will still allow for the intended purpose of prevention and punishment of genocide, yet respect the basic tenets of free expression.
The upcoming appeal of Rwandan musician Simon Bikindi, who was charged with incitement to genocide in various contexts, including direct calls to action, implicit appeals, music composition, and failure to prevent radio broadcasts of his songs, will allow the International Criminal Tribunal for Rwanda (ICTR) to clarify the elements of incitement to genocide. Based upon a review of the genocide jurisprudence and the lessons learned from the American experience, I propose the following test: whether the speaker directly, seriously, and publicly urges the commission of genocide in the near future and that the message is reasonably likely to produce such action. Explicitly incorporating an imminence standard will permit incitement to genocide to serve its intended purpose of prevention while safeguarding freedom of speech.
This analysis is divided into six parts. Part I reviews the background of Simon Bikindi whose case has the potential to elucidate the incitement to genocide standards. Part II tracks the development of international law in response to the Holocaust and Rwandan genocide, while Part III examines nearly a century of U.S. experience in balancing speech and security. Part IV canvasses the proposed tests leading to Part V, which explains why the proposed imminence test should become the accepted standard. Lastly, Part VI details the test’s application in Bikindi’s appeal.
January 12, 2010
Global Warming Researcher Says Papers Mischaracterize His Work
A climate change researcher has indicated his unhappiness with coverage and interpretation of his work in the Daily Mail. Mojib Latif says that the paper's story about his work in The Mail on Sunday mischaracterizes it; Dr. Latif says followup stories in the Daily Mail and the Daily Telegraph also misrepresent his research as not supporting the current consensus on global warming.
Dr. Latif told the Guardian, "It comes as a surprise to me that people would try to use my statements to try to dispute the nature of global warming. I believe in manmade global warming. I have said that if my name was not Mojib Latif it would be global warming."
How Courts Perceive the Internet
Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I analyze the manner in which courts have interpreted law and (just as importantly) internet facts in a sampling of cases concerned mostly with Canadian copyright law. Moreover, I am concerned with the interpretation of rules, whether common law or statutory, which are broadly conceived (or open ended) in nature. In part 1, I examine the way in which the internet facts may perceived by interpreters. At the most general level, there a choice of perspective that courts may adopt in connection with the internet – i.e. whether to view the activity under consideration in technical or functional terms. Once that perspective is adopted, courts are able, where appropriate, to analogize with real space for the purpose of including or excluding the activity from the rule. But where we might expect the internet differences to be so great as to be excluded from an extant rule, or to require the formulation of a new rule, courts have proven fairly adept at creating separate (or tiered) meanings of the same rule in connection with real space, on the one hand, and cyberspace, on the other. In part 2, I discuss two dominant approaches to legal interpretation – literalism and purposivism. I briefly discuss these approaches and illustrate how the choice of interpretive approach can have a determinative impact on the outcome of a case. In part 3, I analyze specific Canadian copyright cases identifying the interpretive approach taken with respect to both the law and facts. Perhaps the most important insight from these cases is that interpretation of law and facts often help to mutually constitute one another. Interpretation is, in other words, a much more dynamic process than the formalist model of legal interpretation might suggest. In part 4, I draw four general (though tentative) conclusions emanating from this paper concerning interpretation and the internet, as follows: (1)A purposive approach to legal interpretation is the best guard against inappropriate applications of a rule to a new technology (2) Interpreting law and facts is a mutually constitutive exercise (3) There may be a “principle” of internet efficiency at play which influences the manner in which courts interpret either or both law and facts;and (4) Material differences between real space and cyber space may be accommodated through tiered meanings of a rule.
Download the paper from SSRN at the link.
Regulation of "Low-Level" Racist Speech in Commonwealth Countries
Political commentary on race, multiculturalism and national identity can be very controversial because it often appears to demarcate a line between those Australians who are ethnic and cultural insiders and those who are outsiders. This type of speech can venture into the territory of being low level racial vilification speech. That is, speech that contains overtones that are hostile or contemptuous towards a particular racial group but which does not overtly espouse hatred. Low level racial vilification speech serves to exclude others from being truly equal within the community. Yet it does not appear to be effectively regulated under the Racial Discrimination Act. However, this type of speech deserves some form of public censure. In this article I analyse low level racial vilification speech in the context of political speech. I consider whether it is possible to implement a policy scheme where speech with racist overtones, as opposed to hate speech, can be subjected to some form of official censure whilst, in the interests of not unduly restraining political speech, not being prevented from being published or disseminated.