Hate speech, freedom of expression and legal responsibility

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By LEONARDO AVRITIZER*

Overlapping with electoral fraud discourse can draw a scenario of violence with an air of social chaos

There is an ongoing debate in Brazil about the legal limits to freedom of expression, with repercussions on the possibility of legal accountability – criminal, including – of those who profess hate speech. In a recent interview published in Folha de S. Paul, the professor at the Getulio Vargas Foundation in São Paulo Clarissa Gross made a statement that reignited the controversy in academia.

According to the researcher, for a speech to be criminally imputable “it is necessary that the language used be one that in the context means incentive or instigation to commit a crime and that there is a context of probability that the speech will lead to the commission of a crime”. This statement, which could generically express the main variables involved in the problem, seems to be based on a 1969 decision of the Supreme Court of the United States, known as Brandenburg v. Ohio. The researcher, however, largely ignores more recent discussions about the same decision; and she seems to be incapable of taking a stand on the concrete issues surrounding discussions about hate speech in Brazil today.

It is worth resuming the debate on free speech and hate speech in the United States, in light of the reference to the US Supreme Court. From the 1920s to the 1960s, the Supreme Court's decisions expressed a basic concept according to which any and all ideas could take the form of inciting crime/violence. Early 20th-century jurisprudence, such as Debs v. United States or Schemck v. United States, assumed that there was no content that could not be configured as hate speech, signaling a clear intention to punish heterodox/alternative political speeches, both from the extreme right and from the left.

This tendency will change in the 1960s when the Brandenburg case appears, which must be explained due to its importance in the jurisprudence on hate crimes. The case involves a member of the far-right sect Ku Klux Klan who convinced a television reporter to film a meeting of the Ku Klux Klan in which one of the lines raised the possibility that Clarence Brandenburg's speech encouraged revenge against blacks and Jews. Based on that speech, Clarence Brandenburg was convicted of violating Ohio's criminal union law for allegedly advocating radical political and economic change by criminal or violent means. The legal statute, from 1919, was enacted at the time of the so-called “first red scare” – left-wing mobilizations in the USA at the beginning of the 0th century – in a context of repression of opinions that diverged from those of the government.

The Supreme Court acted and reversed the conviction, stating the following: “the constitutional guarantee of freedom of expression and a free press does not allow the State to prohibit or proscribe the advocacy of the use of force or the violation of the law, with the exception of situations in which such advocacy is directed towards inciting or producing an imminent illegal action or raises the likelihood of an incitement to produce such an action”.

At its core, the Supreme Court decision – which is still extremely relevant today with regard to Brazilian discussions – generated what is known in the literature as the three tests, the advocacy test, the imminence of an illegal act and the probability test. of an illegal act. We know that the heart of the Supreme Court's decision in the Brandenburg case was the criticism that the Ohio state statute did not distinguish between advocacy and the imminence of an illegal act.

On that occasion, the US Supreme Court raised two important issues that were later reviewed in supervening decisions: that of proximity (of the hate crime in relation to incitement) and that of the degree of risk (that, in fact, the hate crime will to occur). Hence the justices concluded that “illegal actions to be carried out in some indefinite future do not justify a conviction, [ie] the danger must be imminent” (see Wilson and Kiper, Incitement in the era of populism).

In order to make the reference to the debate at the US Supreme Court useful, establishing some dialogue with the recent decisions that have been handed down on the subject by the Federal Supreme Court (STF) and, in particular, by Justice Alexandre de Moraes, a more detailed reflection on the parameters contained in the concepts of imminent danger, proximity and probability of the occurrence of hate crimes is advisable.

First, it is necessary to put into perspective the US Supreme Court's argument about proximity, which was constructed in an analog era, in which television broadcasting (at the local level, as it was an Ohio state TV network, in the 1960s) had an incomparable reach to what can be estimated under the domain of the web and social networks. That is, there is a conception of space and time that has changed over the more than 50 years in which the decision was taken – and this is not negligible.

Just consider, for example, that after reading information online about the owner of a pizzeria in North Carolina that kept workers in conditions analogous to slavery, an individual drove there and opened fire on the store. The news was false. (New York Times, 5/12/2016). Numerous connectivity elements, such as the spread of smartphones, the reduction in the cost of telephony and the expansion of the quality of the internet connection, associated with the emergence and expansion of social networks, promote a break with the monopoly of the traditional press on the production of content , which is disruptive. Each and every user, everywhere and at any time, becomes a potential political agent – ​​this is the measure of the impact of the speeches he or she carries out.

Particularly, this novelty induces a series of literature updates, questioning, precisely, the concept of imminent danger mobilized by the decision of the Supreme Court of the United States. The problem of spatiality and temporality is raised. In the age of social media, what happens in Ohio doesn't stay in Ohio and what happens in Acre doesn't stay in Acre.

Clarissa Gross claims the contextual element in the characterization of hate speech, but disregards the updating of the space-time dimension that the web has imposed on social relations. President Jair Bolsonaro, at a campaign event still in 2018 – more precisely on September 3 – spoke of shooting the petralhada. It was enough for a set of acts of political violence to add up over the last few years.

Recently, the invasion of a birthday party of a Workers' Party militant by a supporter of the president in Foz do Iguaçu (PR) resulted in an emblematic episode of political violence, but if we consider the orthodoxy of the US Supreme Court jurisprudence we will not find a solid basis for establishing a relationship between hate speech as an incitement to violence of a political nature and the murder of “a municipal guard”, as the president argued.

Political violence is not restricted to people – voters or political leaders – but it can also be directed at institutions – headquarters of political parties, campaign events, electoral bodies. Electoral violence is a type of political violence, which is a rooted and widespread phenomenon in Brazilian politics, more intense at the local level, of an economic nature, involving disputes over control of power spaces.

At the national level, however, it has grown, driven in large part by the repeated manifestations of the still-president Jair Bolsonaro, who treats political opponents as enemies and preaches, on many occasions, their physical extermination. The overlapping of hate speech and intolerance with electoral fraud may come to design a scenario of post-election violence with an air of social chaos. Hence why not only is there a crime, but also a crime of responsibility.

Clarissa Gross is unable to advance, through her argumentation, in understanding the dimensions of political and electoral violence. If for no other reasons, then for the fact that she has solemnly ignored that the speaker of the speech is none other than the president of Brazil. Let's look again at the United States, where there is data on the exponential increase in so-called hate crimes over the first year of the Donald Trump administration. Despite the fact that the other crime rates in that country have been reduced in the same period, in 2017 the USA reported 7.509 hate crimes – an increase of 17% compared to the previous year.

There are, therefore, at least two questions that Gross either does not answer or answers poorly: the first concerns the relationship between hate speech propagated by macro-actors or people of political centrality and the issue of the imminence of a crime; the second is whether it is appropriate to think about the probability of a crime being committed based on a speech, leaving aside temporal or spatial milestones that, with the internet and social networks, no longer make sense. These are not abstract questions: the fact that a campaign speech in Acre generates more than 17 entries on Google shows that the speech has temporal continuity and is no longer linked to the spatial reference in which it was placed.

Brandenburg v. Ohio correctly assumed that the mere practice of advocating an idea may not be sufficient for a criminal conviction and, to that end, established spatial and temporal tests: advocacy, imminence and probability of an illegal act. However, in the age of Twitter and the hate speech being promoted by mainstream of the political system, the spatial and temporal test has to change.

What matters is whether a speech made by a political macro-actor with millions of followers on social networks and reproduced in dozens or hundreds of profiles should, in fact, have the corresponding responsibility limited to the space and time of its production. Judging by the data we have on hate crimes and escalating political violence, the answer is no.

*Leonardo Avritzer He is a professor at the Department of Political Science at UFMG. Author, among other books, of Impasses of democracy in Brazil (Brazilian Civilization).

 

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