In the United States the legal protection of freedom of expression trumps the protection of other values, a sign of American exceptionalism. Within French law, courts are trying to find a balance between freedom of expression and other values. Hate speech is not protected in France. The presentation will propose that the divergence in the balancing of freedom of expression and other values can be understood in reference to the broader historical, social and philosophical context in which jurists operate. The central argument is that the balancing of freedom of speech and other values in France and the United States can be understood by reference to the role of the government and the understanding of liberty. This understanding affects how jurists define the content and the limits of a liberty and strike a balance between liberties in conflict. This paper aims to approach critically two different conceptions of republicanism and their significance for rights.
There is currently a frenzy of activity by the world’s governments to regulate harmful speech on social media. Germany’s controversial Network Enforcement Act slams tech giants with penalties unless they censor hate speech. Singapore’s Protection from Online Falsehoods and Manipulation Bill punishes those who purvey and platform “fake news”. In America, conversations are well underway about repealing Section 230 of the Communications Decency Act, which immunizes internet platforms from legal liability for harmful content others post And in Britain, the government has recently announced new plans to grant the telecommunications firm Ofcom with the legal power to punish social media firms if they refuse to take down harmful content. Is it justified to saddle social media companies with a legal duty to suppress harmful content? If so, what kinds of regulation are acceptable?
Controversy persists about the harms caused by hatred expressed in public discourse. Speech act theory responds that discriminatory speech, far from distinct from real-world violence and exclusion, actively constructs such a world. However, speech act theory fails to overcome the ‘arbitrariness dilemma’ (cf. Heinze, ‘Cumulative Jurisprudence and Hate Speech’, 12 Int’l J. Hum Rghts (2009) 193-209; reprinted in Hare & Weinstein, Extreme Speech and Democracy (OUP 2009) 264-84). To protect all vulnerable groups fairly, the state must censor speech beyond what any democracy can admit; alternatively, if a state wishes to avoid excessive censorship by punishing only small quantities of speech, it must extend protection to some groups while denying protection to similarly situated groups. Contemporary democracies have chosen the second option, meaning that bans purport to combat discrimination yet end up entrenching it.