What shall we do with racist, bigoted and offensive speech in new media? Varying approaches to circling squares.

By Douglas Gichuki

WhatsApp Image 2018-05-03 at 15.51.12Inherent tensions define the varying approaches between the regulation of speech on new media platforms and protections for freedom of speech as a fundamental right. These tensions are increasingly magnified as a transnational internet comes up both against hard regulatory norms based on the Westphalian sovereignty and cultural norms emanating from both radical left and right viewpoints. This piece forms part of the IP Unit’s core research at the intersection of innovation and regulation.

Canadian Professor Jordan B Peterson is currently the internet’s most famous clinical psychologist. His YouTube lecture series account has over 100 million hits, while his recently published book, 12 Rules for Life: An Antidote to Chaos, is a runaway bestseller on Amazon in the UK, US, Canada, Australia, Germany and France.  In an opinion piece carried by the New York Times and titled “The Jordan Peterson Moment”, David Brooks describes him as possibly being “the most influential public intellectual in the Western world right now.”  His ascendancy to cyberspace stardom however started to accelerate in late 2016 due to his refusal to accept “mandated speech”- Peterson’s view- of Bill C-16, an Act aimed at amending the Canadian Human Rights Act and the Criminal Code by adding gender expression and gender identity as protected grounds to the Canadian Human Rights Act, and also to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing.

Peterson’s militancy at rejecting Bill C-16 is rooted in his belief that mandated political correctness is a slippery slope to totalitarianism, indicating that whereas he has no objection to calling people by the gender pronouns of their choice, the government cannot and should not dictate speech codes via legislation.  Speaking to the Toronto Sun he is quoted as saying “these laws are the first laws that I’ve seen that require people under the threat of legal punishment to employ certain words, to speak a certain way, instead of merely limiting what they’re allowed to say.” Consequently, he is viewed by some as a free speech martyr while others view him as a controversial enemy of the transgender rights movement.

Free speech jurisprudence is broadly divided between the absolutist viewpoint based on individual autonomy and a more open ended viewpoint where ones capacity to say whatever they want is circumscribed against a human rights understanding designed to protect governmentally defined equality, democracy and human dignity. South Africa, Britain and Canada are examples of countries with the second-and more internationalist approach- where free speech jurisprudence is calibrated against a need for freedom of expression to balance out with its effect on dignity, equality and civility. Further Israel, Germany and France forbid the sale of Nazi items such as swastikas and flags, while holocaust denial is a crime in Canada, Germany and France. In the United States on the other hand, bar few exceptions, pursues a model of almost absolutist free speech, with no legislation whatsoever circumscribing speech that is offensive on grounds of race, religion or ethnicity.


The First Amendment to the Constitution of the United States provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” The basic justification presented[1] is that a process of robust debate, if uninhibited by governmental fiat leads inexorably to the discovery of truth, or at least the best perspectives or solutions for societal problems.[2] The metaphor of a market place of ideas, coined originally by English Philosopher John Milton and later expanded on by John Stuart Mill stressed that truth could best be discovered through competition with falsehood. This metaphor of a market place of ideas found early voice in a dissent by Justice Oliver Wendell Holmes in Abrams v. United States (1919). In Abrams, Holmes reversed course from previous opinions in which he had expressed support for state restrictions on speech tending toward a “clear and present danger” test. He contended that the distribution of fliers expressing hostility to the US and urging resistance to the war effort did not constitute the sort of danger that Congress has the right to regulate. He observed that while it may be perfectly logical to stamp out dissent and silence the opposition, one should be wary of such aspirations of certainty. He suggested that the best test for truth is the power of the thought to get itself accepted in the competition of the market.[3][4]

Subsequent decisions such as the 1977 Skokie controversy cemented this free speech absolutism. Officials of the town of Skokie had filed suit seeking to enjoin anti-Semitic marchers from wearing their Nazi uniforms, displaying the swastika, or distributing any materials that would “incite or promote hatred against persons of Jewish faith or ancestry.”[5] The Illinois Supreme Court held that the proposed demonstration was protected expression and that an injunction against the march would violate the First Amendment.[6]

Consequently, limitations on the freedom of expression in the United States are minimal. The First Amendment generally prevents the government from prohibiting speech or expressive conduct merely because the government disagrees or disapproves of the content. Notwithstanding the expansive freedom of speech guaranteed, U.S. courts have recognized that some forms of speech are harmful to society and the government has a legitimate right to regulate speech of this nature even though it involves a content-based restriction.[7] The Supreme Court of the United States has held that obscenity, defamation, fighting words, commercial speech and true threats are all forms of speech that are not protected by the First Amendment.[8] Additionally, the Supreme Court has upheld reasonable time, place, and manner restrictions on speech, but only when they are “justified without reference to the content of the regulated speech.”[9]


Unlike the expansive individual speech freedoms that the First Amendment affords, the E.U, South Africa, Canada and most other countries that have patterned their free speech protections on international conventions such as the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights and the European Convention on Human Rights have a more restrictive approach to regulating freedom of speech. European Union law intentionally subordinate individual freedom of expression to the promotion of values associated with dignity and the collective community that constitutes a democracy.[10] The pre-eminence of a “human dignity standard” in these international models is unparalleled, since human dignity is perceived as the root for all basic rights, and all basic rights are considered specific manifestations of the human dignity principle.[11]

As a result, governments play an active role in restricting speech. Limitations on the freedom of expression are extensive as illustrated by the European Convention of Human Rights which[12] is assertive that freedom of expression will be subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” [13]

In Spain, for example, judges may shut down Spanish sites and block US Websites that do not comply with their laws.[14] In section 137 of the Dutch Criminal Code, it is deemed a public offence to insult a group of persons on the basis of their religion, sexual orientation, race or gender.[15] Sweden’s Freedom of Press Act prohibits the expression of contempt of a population group with allusion to its race, skin colour, religious affiliation or national and ethnic origin.[16] In the United Kingdom there has been enactment of the Public Order Act which forbids expressions likely to stir up racial hatred.

As shall be demonstrated in a later piece, these varied approaches are increasingly consequential to the regulation of online social media platforms.

[1] Milton J, Areopagitica, London, 1819; Abrams v. United States (1919), The Supreme Court of the United States; Whitney v. California (1927), The Supreme Court of the United States.
[2] Ingber S, ‘The marketplace of ideas: a legitimizing myth’, 1 Duke Law Journal, 1984, 3.
[3] http://uscivilliberties.org/themes/4099-marketplace-of-ideas-theory.html accessed on 21-11-2017.
[4] Mill J, On liberty, 1st ed., Longman, Roberts & Green, United Kingdom,1859, 13-48.
[5] Stone G, ‘ Hate speech and the U.S. Constitution’ 3 East European Constitutional Review, 1994, 80.
[6] Stone G, ‘ Hate speech and the U.S. Constitution’, 80. 
[7] Knechtle J, ‘Holocaust denial and the concept of dignity in the European Union’, 36 Florida State University Law Review, (2008) 8.
[8] Roth v. United States (1957), The Supreme Court of the United States; N.Y. Times Co. v. Sullivan (1964) The Supreme Court of the United States;Chaplinsky v. New Hampshire (1942) The Supreme Court of the United States; Brandenburg v. Ohio (1969) The Supreme Court of the United States; Valentine v Chrestensen (1942), The Supreme Court of the United States; and Virginia v. Black (2003) The Supreme Court of the United States.
[9] Ward v. Rock Against Racism (1989) The Supreme Court of the United States.
[10] Krotoszynski Jr. R, ‘A Comparative perspective on the first amendment: free speech, militant democracy, and the primacy of dignity as a preferred constitutional value in Germany’, 78 Tulane Law Review, 2004, 1597.
[11] Ullrich D, ‘Concurring visions: human dignity in the Canadian Charter of Rights and Freedoms and the Basic Law of the Federal Republic of Germany’, 3 (1) Global Jurist Frontiers, 2003, 80. 
[12] Article 10, European convention of human rights, 4 November 1950, E.T.S. 5.
[13] Article 10, European convention of human rights.
[14] Almagor R, Confronting the Internet’s Dark Side, Cambridge University Press,2015, 232-233.
[15] Section 137c, Criminal Code of the Kingdom of the Netherlands(1881).
[16] Article 4, Freedom of the Press Act(1766).