Accepted abstracts
Government Speech and Minority Rights
William D. Araiza
Brooklyn Law School
What should be a democratic government’s responsibilities when it speaks in ways that attack or criticize minorities? On the one hand, a government’s duty to govern impartially suggests that it should refrain from speech that harms minority interests. On the other hand, the existence of civil society groups that presumably enjoy the constitutional right to discriminate, or at least the right to hold discriminatory views, raises the question of how the government should interact with such groups. To what extent is the government obligated to distance itself from such groups or such views? By contrast, to what extent is the government obligated or allowed to acknowledge, defend, and even valorize their rights to discriminate? Is the government allowed to associate itself with such views?
Of course, the government sometimes speaks in ways that directly impact minority rights, rather than speaking about third parties who in turn impact minority interests. An example is the phenomenon of so-called “no promo homo” laws. As suggested by their label, these laws express government beliefs disapproving of and refusing to “promote” same-sex orientation and conduct. Do these laws reflect a state’s legitimate position on contested moral issues, or do they send an illegitimate message disapproving of persons based on their status? Does the answer to that question turn on whether concrete—that is, non-speech-based—discrimination based on sexual orientation is constitutional? Or may government take a position on such matters, even if that position is contradicted by constitutional requirements?
In the United States, these questions arise, not just under the constitutional guarantee of equal protection, but also under the constitutional concepts of the government speech doctrine, the right to free religious exercise, and the “state action” requirement. This paper considers how these doctrines impact these difficult questions.
Manipulation and the First Amendment
Helen Norton
University of Colorado Law School
Speakers’ efforts to manipulate listeners—that is, their efforts to covertly influence their targets’ decisionmaking without their targets’ conscious awareness—are far from new. Today’s digital technologies, however, increasingly enable the widespread and effective deployment of user interfaces to manipulate their targets’ decisionmaking about commercial services and products, about elections and voting, and more. These manipulative interfaces, made possible by predictive algorithms informed by big data, are often called “dark patterns.”
First Amendment law generally presumes that listeners can protect themselves from unwelcome or harmful speech through the traditional remedies of exit and voice, avoidance and rebuttal. But First Amendment law recognizes that such self-help is often unavailable or ineffective in certain settings where comparatively knowledgeable or powerful speakers harm comparatively vulnerable listeners through their false or misleading speech, through their nondisclosures, and through their coercion. For these reasons, First Amendment law sometimes permits government to protect listeners by prohibiting speakers’ false and misleading speech, by requiring speakers to make accurate disclosures, or by requiring speakers to stay away from listeners who prefer to be left alone.
This essay proposes to add manipulation to the list of harms to listeners’ interests that justify legal protection in certain settings consistent with the First Amendment. I propose that First Amendment law can and should be understood to permit the government to intervene to protect listeners from speakers’ manipulative efforts in settings where listeners cannot protect themselves precisely because they’re unaware of their manipulation.
Fake News and Free Speech Theory
Filimon Peonidis
Aristotle University of Thessaloniki
According to a stipulative definition given by Axel Gelfert “fake news is the deliberate presentation of (typically) false or misleading claims as news, where the claims are misleading by design.” The latter term means that great pains are taken by their authors to make these claims believable by a wider audience in an effort to achieve various nefarious purposes. In this paper I focus on fake news, which have a clearly political content and are disseminated primarily through the Internet and raise the following question: what does free speech theory, as it has been developed in the United States and other Anglophone countries, have to say about this form of political speech? This is a rather novel question, since in the past in liberal democracies a small number of competing mainstream media enjoyed an almost absolute monopoly on the dissemination of political news and thus had a strong interest in being reliable and trustworthy. During the last years the situation has rapidly changed, the sources of information have multiplied and it has become more difficult to trace the origin and check the reliability of many reports. In this context I would like to briefly examine the basic justifications given in favor of free speech –namely, the pursuit of truth, the proper functioning of democratic procedures, and the exercise of individual autonomy- to determine whether fake news should fall within the category of legally protected speech.
Free speech and Internet: is there a new interpretation for human rights? With a special reference to Chinese and Russian approaches on Internet regulations
Oscar Pérez de la Fuente
Carlos III University of Madrid
Different legal cultures have a variety of approaches to regulating hate speech, ranging from the American libertarian approach to the German positive liberty approach. There are current phenomena linked with the increasing levels of online hate speech. Cyberspace could be a good place to show the effectiveness of human rights. One view is to affirm that rights should be the same on- and offline while the other view is to defend that rights must be interpreted differently on internet.
There is a European regulation on online hate speech, but the American approach is not to regulate this issue. The point has been made in some Court cases that the Law is local but the internet is global. The restrictive rules on hate speech from one country can be easily left behind on the net. We are, therefore, faced with two possibilities: a) A change in how Law and human rights are currently conceived; b) Maintain the current situation, accepting the flaws in an imperfect system. Likewise, some people argue that cyberspace should not be rule free and laws must be enforced against internet users as they are for the rest of the citizens.
Hate speech has a ‘silencing effect’ -Fiss- for the members of minorities and this justifies some kind of regulation. The liberty/equality dilemma on free speech sometimes requires a solution in terms of protection of minorities. This view is near to the European approach and far from the American, but the net is single space and is global. Human rights must be conceived globally but in a sense compatible with the protection of minorities.
Human dignity and Free Speech
Alexander Tsesis
Loyola University Chicago
Constitutional democracies throughout the world place a premium value on free speech because of the importance of debate, information, and communication to the lives of individuals and the workings of government entities. The enjoyment of personal autonomy and civic participation are core to pluralistic democracies.
Much debate has been focused on the extent to which ideals of self-expression and self-determination are consistent with regulations restricting certain forms of hate speech. In the United States the dominant strand of scholarship and jurisprudence has leaned heavily on the importance of free speech to a healthy democracy. Much of those ideas are tied to a libertarian formulation of the First Amendment. Other countries, including France, Canada, and England, have tended to be more attuned to the dignitary harms of speech that targets group based on their minority status.
Social media has significantly expanded the global reach of supremacist ideologies outside the natural boundaries of democracies to internet searches throughout the world. Under these circumstances, conflicts are increasingly likely between individual expression and values like safety and social tranquility. Whereas, the Supreme Court of the United States has been categorical in its protection of communications, other democratic societies have found regulations appropriate to avoid violence, breach of the peace, and discrimination. This article will assess whether the ideals intrinsic to just democratic governance are consistent with limited or expansive hate speech regulations.
SLAPP – between the right to a fair trial and chilling effect for Freedom of Expression
Jędrzej Skrzypczak
Adam Mickiewicz University in Poznan
SLAPP (strategic lawsuit against public participation) means strategic, systemic actions against journalists and other participants of public life, whistleblowers, etc. The SLAPP has been called a kind of legal harassment on behalf of influential private or public figures and organizations who seek in this way to avoid public scrutiny. The main aim of such actions is to hit financial and psychological resources and induction the chilly effect. This paper will present such types of cases from Europe. No EU member state has launched sui generis regulation against SLAPP. The presentation will analyze some examples of anti-SLAPP law from the USA and a draft of EU anti-SLAPP. On this basis, there will present some postulates that should include in future legal regulations.
Artificial Intelligence and Hate Speech
Migle Laukyte
Universitat Pompeu Fabra
Hate speech online is an ongoing and continuously evolving phenomenon: every second enormous quantity of hatred is being spilled in social networks, published on webpages, tweeted among friends and colleagues, searched for on search engines. Not all this hatred is legally relevant and yet it worries civil society as well as public institutions, because it constantly shows us that narrow-mindedness, prejudice and intolerance are so accessible, so common and so close to us, to our children, to vulnerable social groups —such as ethnic, racial, religious and other minorities, people with disabilities, etc. — all of whom more often than not become not only passive observers, but also targets for haters.
However technological advancements not only (to certain extend) guarantee the anonymity of haters and permit to share and disseminate this abominate speech, but can be also used to fight it: this contribution focuses on AI-based techniques and algorithms that are being used for that purpose. On the one hand AI tries to identify the hate speech and stop it from spreading, but on the other hand AI is also used to identify the groups of people against whom the hate speech is being directed so as to prevent and get ahead of any possible mobilizations of haters who could decide to leave the online world and move to the real one and translate their hatred into criminal behavior.
This chapter analyzes different ways in which AI is used for this purpose and looks at how and whether AI could stop the spreading of hate speech. The chapter also addresses the main hurdles that could hamper AI in being successful, such as difficulties in natural language processing and contextualization of the speech, and the possibility that the AI (bots) were used by haters themselves to generate hate speech-based audio and video content.
Disentangling “Cancel Culture”
David S. Han
Pepperdine University Caruso School of Law
The debate over “cancel culture” has become a flashpoint within the present culture wars. Yet both the term itself (which is typically used in a pejorative sense) and its application to different contexts are nebulous. In the broadest sense, “cancelling” is simply the social shaming and withdrawal of support from individuals or companies in response to past transgressions. Framed in this manner, cancel culture is nothing new, as group shaming of unpopular speech and actions has been around for time immemorial. But it also refers to a type of shaming and ostracism unique to the social media age—one rooted in a particular technological context where records of one’s past sins are easily accessible and retained indefinitely, where social reprobation can be disseminated broadly and rapidly, and where the intensity of outrage (and resulting sanctions) can be greatly magnified through the mechanisms of social media.
This Essay seeks to disentangle multiple strands of the cancel culture debate—a debate that is largely outside of the realm of First Amendment doctrine, resting instead upon conflicting views as to how free speech principles ought to be reflected within public discourse. The Essay distinguishes between various potential meanings of “cancel culture” and analyzes different contexts to which the term may refer. It also delineates the free speech concerns on both sides of the debate, highlighting both the capacity of severe social shaming to chill speech and the use of the “cancel culture” term as a rhetorical cudgel for those seeking to minimize healthy social criticism. In doing this, it highlights the broad significance of the debate, which encompasses conflicting social and cultural norms regarding free speech that, in the social media age, will likely shape the nature of public discourse to a far greater extent than formal constitutional doctrine.
Representations of Migrants’ Rights in Visual and Verbal Official Discourses in Digital Contexts of Covid-19 Period in Russia
Tatiana Barandova
PhD in Sociology, Associated Professor at the Department of International Relations and Political Science, North-West Institute of Management at Russian Academy of National Economy and Public Administration.
Through the period of lockdown(s) started since 2020 and lasting by the current moment in all countries authorities and population met with the situation of forced “digitalization” of majority of their activities, including labor. Many sectors of economy, previously involved huge amounts of migrants (like construction, housing and communal, care work, etc), met with difficulties of both – administrative and financial – nature and thousands of working migrants suffered from new obstacles, connected with introduction of “quarantine-like” measures , announced by governments all over the world. At the same time, (self)isolation (how it was named in Russian context) brought new challenges not only for implementation of state migration policy goals and needs, but also for issues of prevention/struggle against violations of migrant’s rights, whose took as well new forms due to specific circumstances for all groups of migrants (i.e. whole continuum between highly qualified specialists and non-qualified workers of all ages and genders, countries of origin, ethnic and other identities). The purposes of this paper is to study how and in what exactly fields of migrant’s rights there represented in official discourses (verbally and visually) as well as how were reflected issues of major violations and in what direction the “image of migrant” has been transformed during the 2020-2021 period of Covid-19 restrictions. Empirical data: Reports of federal and regional Ombuds institutions, selected by set of criteria federal and regional media texts & images (screening), federal normative documents changes during the considered period.
Gender-based Hate Speech against Women: A Comparative Perspective
Irene Spigno
Inter-American Academy of Human Rights
Gender-based hate speech against women is a form of gender-based violence. Its roots are cultural and deep in society. Gender-based hate speech against women is often invisible and imperceptible given that hate expressions are deeply internalized in daily language. In reality they are expressions that denote a deep contempt and in some cases hatred which often is translated into violence against women. What does the law do in relation to this issue? This paper intends to analyze, from a comparative perspective, the approach developed towards hate speech against women for gender reasons from a normative and judicial point of view.