The Norway killer, defining inciting hatred, and hate speech being free speech

Anders Behring Breivik, a 32-year-old Norwegian man, is currently under arrest for and has pled not guilty to a mass murder in Norway. First, he bombed a government building in the capital Oslo, killing 8 and injuring 30. Although the bombed building housed the Norway prime minister, the head of state was not present at the time. He later shot 69 teenagers to death at a Labor Party youth camp at Utoya island. Some originally predicted (and I admittedly guessed too before knowing all the facts) that a radical Muslim initiated the attacks. Later, it turned out that the perpetrator was influenced by anti-Muslim extremist views and opposition to multiculturalism.

Many European Union countries make it a crime to express views that might incite violence or hatred against a certain group of people. Specifically, section 135a of the Norwegian penal code Straffeloven specifies (translated by Google with some mods by me):

Any person who willfully or with gross negligence expresses discriminatory or hateful speech, may be punished by fines or imprisonment for up to 3 years...A discriminatory or hateful expression means threatening or insulting anyone, or promoting hatred, persecution or contempt against anyone because of their
a) race or national or ethnic origin,
b) religion or belief, or
c) homosexuality, sexual lifestyle or orientation.

In contrast, in the United States, the First Amendment to the Constitution prohibits "abridging the freedom of speech." As a result, US courts have often ruled in defence of people who have expressed racist or anti-religious views. According to the American Civil Liberties Union: "The First Amendment to the United States Constitution protects speech no matter how offensive its content." Which is why it's not a crime in itself to express racist views, notably when comedian and Seinfeld star Michael Richards, at a 2006 stand-up event, yelled the N-word and other bigoted expressions in response to a black audience member heckling him. Nor the non-stop bigotry and hatred spewed on talk radio by Rush Limbaugh, Michael Savage, Sean Hannity, Glenn Beck, etc. However, when such hatred escalates into violence, criminal charges are undoubtedly justified. The question is, does hate speech inherently incite violence and thus should not be protected free speech?

In 1952, the US Supreme Court ruled in Beauharnais v. Illinois in favor of a state law banning defamation of a race or class of people, following the tradition that libel is not free speech. That law banned expressions asserting "depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy." However, authority of the case fell apart in later years, according to Justia.com:

Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defama-tory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan.

Had that case stood, free speech laws in the US would've almost been at the same level as those in the EU.

In Virginia v. Black (2003), the USSC upheld a Virginia law that prohibited cross-burning because that practice "because burning a cross is a particularly virulent form of intimidation," according to the decision. So far, it can be concluded that free speech does not include explicit, direct intimidation or harrassment of another specific person or deliberately expressing libelous statements about a person.

Breivik's manifesto heavily cited Robert Spencer and Pamela Geller, two American authors known for their radically anti-Muslim points of view. The document also reproduced a publication by the conservative Free Congress Foundation, Political Correctness: A Short History of an Ideology. Basically, according to the right wing, PC is a liberal ideology that stifles speech to ensure that the least people in the audience is offended. So now, the new PC might be to ensure that crazies like Breivik won't get inspired to commit violent acts.

America had a similar albeit smaller experience like Breivik: In January 2011, Jared Lee Loughner shot six people to death and wounded Rep. Gabrielle Giffords; Giffords returned to Congress today and cast a vote for debt ceiling/budget legislation. While it had been initially speculated that right-wing talk radio was to blame, it turned out that Loughner was really a mentally ill drug addict obsessed with conspiracy theories. So should conspiracy theories be protected free speech, or because they might incite insane people to violence those theories should not?

If someone cites influence of radical speakers as the reason for committing assassination or a hate crime, does the blame lay more or entirely with the speaker or the perpetrator? How should we approach controversial viewpoints given the Loughner and Breivik incidents: do those viewpoints inherently incite violence, or do dumb people incite violence? This is sort of like the "guns don't kill people, people do" motto.