What are the limits on categorising someone's statements as 'hatred' in regard to freedom of speech?

Question

In the US there exists a freedom of speech. (There is a similar concept in other countries). This is guaranteed by the first amendment.

John Stuart Mill argued for a limitation to free speech, known as the harm principle. This limitation has been refined into obscenity, defamation, breach of peace, and "fighting words". (George & Kline, 2006, p. 410).

We know that hate speech was distinguished from harassment by the 'clear and present danger' test in 1919, but this was overturned. In Brandenburg vs Ohio (1969) the test applied was whether the speech was "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Hate speech was tested in the 1992 case of RAV vs City of St Paul. This extended the test in favour of freedom of expression.

I'm aware that the common law test for assault includes a test similar to 'an assault necessarily involves the apprehension of injury or the instillation of fear or fright.' That is the perception of harm is a factor in deciding the criminality of the situation.

In Ake Green, the court held that a Swedish pastor who preached against homosexuality was not protected by the free speech laws of Sweden, but was protected by the free speech laws of the European Union.

I apologise in advance to all those who are hurting or who know someone who is hurting for the next paragraph.

The challenge is the middle ground of psychological damage and perceptions of hate-signalling. If a country chooses to debate gay marriage, are people entitled to blame their trauma on the discussion? If a church chooses to say that homosexual practice won't get you into heaven, can people complain that this is a signal to gay-bashers to be violent?

Assumption: Both US and non-US concept of free-speech apply to answers in this question. (The US is a good starting point and then you can jump off from there).

This question applies to both US and European Law.

My question is: What are the limits on categorising someone's statements as 'hatred' in regard to freedom of speech?

Answer 1

Narrowly focusing on hate speech law, as limits on freedom of speech (in countries that purport to protect freedom of speech), there are numerous types of prohibited speech, the the prohibitions are instantiated in many ways.

Section 10 of Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 says:

No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to-
(a) be hurtful; (b)be harmful or to incite harm; (c) promote or propagate hatred.

The prohibited grounds are defined as

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or (b) any other ground where discrimination based on that other ground- (i)causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a)

This conflicts with the SA Bill of Rights Section 16, which guarantees freedom of expression

(1) Everyone has the right to freedom of expression, which includes ­a. freedom of the press and other media; b. freedom to receive or impart information or ideas; c. freedom of artistic creativity; and d. academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to ­a. propaganda for war; b. incitement of imminent violence; or c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Observe that the later statute outlaws "hurtful" speech, but the constitutional exception to general freedom is more narrowly limited to race, ethnicity, gender or religion which incites to cause harm. The SA law is the most restrictive law against hurtful speech that I know of.

In Sweden, Penal Code Art. 16(8) says

A person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin or religious belief shall, be sentenced for agitation against a national or ethnic group to imprisonment for at most two years or, if the crime is petty, to a fine.

First, the speech has to be communicated to others. Second, the topic-restriction is limited to race, color, national or ethnic origin or religious belief. Third, the prohibited acts are threats, and expressions of contempt (not all hurtful statements are expressions of contempt).

The Norwegian Penal Code 135a likewise says

Any person who wilfully or through gross negligence publicly utters a discriminatory or hateful expression shall be liable to fines or imprisonment for a term not exceeding three years. An expression that is uttered in such a way that it is likely to reach a large number of persons shall be deemed equivalent to a publicly uttered expression, cf. section 7, No. 2. The use of symbols shall also be deemed to be an expression. Any person who aids and abets such an offence shall be liable to the same penalty. A discriminatory or hateful expression here means threatening or insulting anyone, or inciting hatred or persecution of or contempt for anyone because of his or her a) skin colour or national or ethnic origin, b)religion or life stance, or c) homosexuality, lifestyle or orientation.

The prohibited acts are somewhat different compared to Sweden (threatening or insulting anyone, or inciting hatred or persecution of or contempt for anyone), and there is a somewhat different set of protected classes. It includes insults, and does not include expression of personal contempt though does include acts that bring about contempt.

In the US, laws against hate speech would be unconstitutional per the First Amendment. Japan's constitution Art. 21 likewise says that

Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

There is reportedly a law against hate speech, which does not actually ban any speech and does not penalize any speech, so it's more a legislative position statement.

Usually, laws against hate speech are limited to enumerated protected classes or topics. That way, ethnic slurs could be against the law even if the addressee didn't care, so actual harm is irrelevant. Even in the South African law, actual harm isn't part of the law, instead, you're prohibited from speech that could be construed as hurtful.

Freedom of religion might provide a basis for a special overriding of a law against hate speech. The reasoning would be that if religion Z teaches that individuals of the protected type Q are evil and must be denounced, then a law against denouncing Q restricts one's freedom to practice religion Z. And thus, if one's motivation for denouncing Q is specifically religious, a religious (and only religious) exception to the law could be created. While freedom of religion generally entails a certain freedom to act according to the teachings of a religion, they are not the same thing. For instance, freedom of religion does not create an exception to murder statutes, just in case the act is a religious human sacrifice.

In the Green case, the Swedish Supreme Court considered the issue of whether freedom speech or religion could make hate speech legal. They stated that

Both of these freedoms may be made subject to limitations embodied in statutes, and which are necessary in a democratic society in order to maintain public safety, protect health or morality or to defend the rights of other persons. In general, freedom of religion can also be restricted in order to maintain public safety, and freedom of speech can be restricted to prevent disorder or crime, as well as to protect a person’s good name and reputation.

Thus if a law is necessary to "protect health or morality or to defend the rights of other persons", freedom of speech or freedom of religion can be curtailed.

Chapter 2 art. 1 of Sweden's Instrument of Government (part of the fundamental law) says

Everyone shall be guaranteed the following rights and freedoms in his or her relations with the public institutions:

and the 6th subsection identifies

freedom of worship: that is, the freedom to practise one’s religion alone or in the company of others.

In an explication of the Swedish Constitution, the government says

The following are absolute rights and freedoms: 1.freedom of worship: ‘the freedom to practise one’s religion alone or in the company of others’ (IG 2:1, paragraph one, point 6)

and also

The rights and freedoms which can be limited by means of law and are covered by qualified procedure rules are as follows: 1. freedom of expression: freedom to communicate information and express thoughts, views and opinions and sentiments, pictorially, in writing or in any other way (IG 2:1 paragraph one, point 1)

In other words, believe what you want, but express only that which is permitted to be expressed.

The court noted that it is necessary to

determine whether the restriction is proportionate in relation to the purpose, and whether the reasons for it are relevant and sufficient.

The court decided that the restriction on speech is not proportionate.

In a comprehensive assessment of the circumstances of Åke Green’s case, in light of the case law of the European Court, it is at first clear that there is no question there of the kind of hateful statements known as “hate speech.” This even applies to his most extreme statement, in which he describes sexual abnormalities as a cancerous growth, as that statement, viewed in light of what he said in connection with this in his sermon, is not something that can be deemed to encourage or justify hatred of homosexuals. The way he expressed himself perhaps cannot be deemed that much more derogatory than the wording of the Bible verses in question, but must be viewed as extreme also when considering what he was preaching to his audience. He made his statements in a sermon to his congregation regarding a theme found in the Bible.

Green was reporting, indeed preaching, what he believed to be contained in the Bible, and the court concluded that the act could not be deemed to encourage or justify hatred. I don't know if a relevant case has arisen in Sweden, but analogous reasoning would say that a person should not be prosecuted for giving a lecture that included reports of hate speech, again, because the lecturer would be reporting a fact about beliefs, and not encouraging or justifying hatred.

Answer 2

The United States is noted as one of the most liberal countries in the world in terms of Free Speech and Hate Speech Law.

U.S. Jurisprudence recognizes three forms of speech: Protected Political Speech (often called Free Speech. Also includes Scientific Speech), Commercial Speech (which can be regulated more stringently than Protected Political Speech) and unprotected Speech. Jurisprudence also starts that all speech is Protected Political Speech, until proven otherwise, so the speaker of alleged unprotected speech need not provide any defense that his or her words should be considered such.

In the case of unprotected speech, it must meet a few criteria: The government must have a compelling interest, the law must be narrowly tailored, and it must be content neutral.

A compelling interest means that the government has an interest to society to limit the speech. That is to say that the speaker's right to say a word or phrase in question is trumped by the government's interest in not having that word uttered. The classic case of shouting "Fire" in a crowded theater demonstrates that the government has an interest in treating all threats as real until proven otherwise and the public has an interest in not forming a panicked mob without need. These overrule the speaker's right to amusement or control he would get from his speech.

Next we have narrowly tailored, which means that the rule can only be understood in certain situations and not broadly interpreted. You are only barred from shouting fire when there is no true threat, not all the time in a theater. Someone who does shout fire while the theater is burning (or you in good faith believe it is burning) is not in violation of any law.

Content neutral means that that the law isn't looking for specific "incorrect" instances which could be political. Here, the law is tailored to intentionally deceptive false threats. There is little political about a falsified threat, but it doesn't take a type of threat into account. Just that the threat was not real, you intended it to be taken as real, and your intention was to deceive others. This would not trip on false alarms in which the threat was given in good faith for the safety of others.

Unlike true threat exemptions, which are typically a-political, hate speech can be political and changing meaning can be apolitical. Take for example two instances from the 2016 presidential campaign: Hillary Clinton referring to all Trump Supporters as Deplorable and Trump referring to Clinton as "a Nasty Woman". Both of these were considered highly offensive BUT were also adopted by those they were intended to offend as sorts of badges of honor. While these two incidents are not "Hate Speech" as codified because neither really refers to a protected group or class of people, helps illustrate the phenomena of re-appropriation of real slurs by the offended group as a sort of badge of honor or jocular calling among friends.

In RAV v. City of Saint Paul, the Supreme Court came down hard against the City of Saint Paul because the speech being criminalized (specifically burning a cross on the property of an African American family) was not done so in a content neutral manner. In this case, the law banned only offensive instances in that particular speech, meaning that a political organization that believed in that symbolic offensive message could not use it legally where as an organization that was opposed to the symbolic offensive message could use it as part of their opposition to the symbolic message.

To give another example, there is a different political message being sent when a protester burns the U.S. Flag than the famous Penn and Teller trick where they burn the same Flag. The Supreme court found that banning the former but permitting the latter was wrong. Rather, they said, the city had ample tools at its disposal to prosecute which they chose not to use (in the specific case, the Cross Burning could be prosecuted under Criminal Trespass and Arson. In our hypothetical flag burning, a law against burning objects of any type because of wild fire concerns would be sufficent).

In a similar unprotected speech instance, fighting words, the nature of the provocative words need not be slurs or hate speech, but rather words or phrases the speaker intends to provoke an attack from the audience. Since any speech is Protected until proven otherwise, being offensive does not automatically rise to the level of fighting words. If a protester burns a flag by a group of U.S. Marines to protest the use of the U.S. Marines in U.S. Foreign policy that the protester disagrees with and is beaten by passing Marines (assuming no other communications between the two were made), than the protester's speech does not rise to fighting words, because his/her intent in the message was not to provoke a physical altercation. In the U.S. Free Speech law does not care for how the audience interpreted the speech, but how the speaker intended the speech to be interpreted. Similarly, while Cathy Lee Grifford's pictures from 2017 are offensive, it was quite clear she made them with the intent of jest, not malice or intended harm. Even though threatening the life of the President is a crime, the intention to do so on the speaker's part is taken into heavy account in investigations of this crime.

While Hate Speech is not in and of itself a crime in the United States, Hate Crimes do exist. These are usually charged against people engaged in criminal acts where the motivation is proven to include a hatred towards the victim for his or her perceived status as a member of a protected class (race, religion, sex (gender and gender identity), ethnicity/nation of origin, sexual orientation and disability (and homeless status in four jurisdictions)). These laws do not recognize any minority status of the victim, but rather that the victim was targeted for a particular discriminatory aspect (People of European "White" can be victims of successfully prosecuted hate crimes in the United States). The U.S. does get slightly quirky if a non-protected classes are included as part of the class. For example if the victim was targeted because of their age and their race, it becomes more difficult to prove as a hate crime because age is not a protected class and you have to prove age was not the greater motivator.

This is different to hate speech as they must be associated with a crime. Having a vocal contempt for a protected class is not the crime. Performing an illegal act that is motivated by that vocal contempt is.