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.

It was illegal to produce Skins with teenage cast members?

At least the Parents Television Council thinks so. (via Drudge Retort and The Washington Post) Press release: "PTC Calls on Feds to Investigate “Skins” on MTV for Child Pornography and Exploitation":

LOS ANGELES (January 20, 2011) – The Parents Television Council ™ today called on the chairmen of the U.S. Senate and House Judiciary Committees and the Department of Justice to immediately open an investigation regarding child pornography and exploitation on MTV’s “Skins.” The New York Times reported today that the network itself is concerned about violating child pornography laws. In addition to the sexual content on the show involving cast members as young as 15, PTC counted 42 depictions and references to drugs and alcohol in the premiere episode. The run-time was only 41 minutes excluding commercial breaks.

(snip)

“However, many of the actors appearing in the show are below the age of 18. It is clear that Viacom has knowingly produced material that may well be in violation of any or all of the following federal statutes:

“18 U.S.C. § 1466A (2008) Obscene Visual Representations of the Sexual Abuse of Children

18 U.S.C. § 2251 (2008) Sexual Exploitation of Children

18 U.S.C. § 2252 (2008) Relating to Material Involving the Sexual Exploitation of Minors

18 U.S.C. § 2252A (2008) Relating to Material Constituting or Containing Child Pornography

“Since it is not necessary for Viacom or MTV to distribute the material in order to be in violation of the law, we call upon your committees to immediately investigate Viacom and MTV for the production of this material. Furthermore, we urge you in the strongest possible terms to compel the Attorney General to mount an investigation by the Department of Justice into whether the production of ‘Skins’ has violated federal law meant to protect minors from exploitation.

Yowza. Of all the PTC's complaints about TV including those artifically inflated FCC complaints and that TV is conspiring to turn all our girls into professional prostitutes who first become pregnant at age 15, I've never seen the PTC directly accuse the production of a television program of being illegal! And you thought that it was bad enough that American corporations were exporting work to Chinese sweatshops!

In an era of 9.4% unemployment in America (in my home state California being 12.4%) and with the newly Republican-dominant House of Representatives having pointlessly passed a bill repealing the 2010 health care reform bill and now targeting abortion, and all layers of government (federal, state, and city) running deficits and cutting everything to the marrow, is it really worth it for the government to investigate whether a new MTV show violated the law?

And I wonder why despite the influence of orgs like PTC, the American Family Association, the Parents Music Resource Center (now defunct though), and other orgs standing on moral pedestals holding the feet of the entertainment industry to the fire, the conditions that perpetrate all that immoral sleaze still persist in America?

Oh, PTC also disliked the fact that a teenager was cast as Jake Harper in Two and a Half Men. But they couldn't find a legal ground to get the feds to tear down the set, seize Jones, and send show creator Chuck Lorre to jail.

In October, the PTC complained about a GQ magazine photoshoot where cast members of Glee portrayed their high school aged characters in sexually suggestive manners. PTC said that the photoshoot bordered on pedophilia but stopped short of demanding that Congress grill GQ editors in lengthy hearings.

PTC must be getting desperate following that New York Times report suggesting that the PTC has been getting irrelevant for the past several years.

Al Sharpton wants the FCC to clamp down on racist speech on the radio?

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Now, I hate hate hate HATE Rush Limbaugh, perhaps the second biggest ignorant doofus on the radio next to Glenn Beck. I like to be informed about current events and politics and hell maybe have a bit of humour or irreverency along with it...but c'mon, Rush Limbaugh's non-stop use of racial metaphors like "reparations" to describe the Obama administration and its programmes such as settlements for black farmers accusing the US Dept of Agriculture of discrimination is just...stupid.

This video clip that I embedded is of the Rev. Al Sharpton interviewed on MSNBC's The Ed Show. Now, there's no doubt that sensible people would be offended (intellectually and sensibly) by Limbaugh's non-stop politically incorrect rhetoric. But to have the FCC police racist speech on the airwaves...I don't know if that'll ever stand First Amendment muster.

Federal law currently makes obscene speech illegal to broadcast: (emphasis mine)

Obscene speech is not protected by the First Amendment and broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time. According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Supreme Court has indicated that this test is designed to cover hard-core pornography.

So that's part of why The Howard Stern Show had to leave FM airwaves after 2005. By that time Stern had signed a contract with a satellite radio company.

The FCC's current indecency policy explains why some of your favourite songs (especially rap and rock music) need to be edited for the radio. Especially all those N-words in rap songs. Before you call Sharpton a hypocrite for targeting Rush Limbaugh instead of Lil Wayne: yes, Rev. Sharpton has spoken out against misogyny and vulgarity in hip hop multiple times...for example at a rally in 2007 after the Don Imus controversy, and in a 2002 editorial "The Hip Hop Generation" (included in Davey D's newsletter from 12 December 2002). In this case however, I don't know if Sharpton also wants urban radio stations to stop playing music that reinforces negative stereotypes about black Americans (such as illiteracy, sexuality, criminality, etc.) Examples of rap songs that create negative stereotypes of blacks:
- Sex: "Every Girl" by Young Money, "What's Your Fantasy?" by Ludacris, "Bojangles" by Pitbull, "Lollipop" by Lil Wayne, "Get Low" by Lil Jon & the East Side Boyz, "Hot in Herre" by Nelly, ooh the list goes on and on and on!!!!
- Crime: "The Boss" by Rick Ross, "What U Gon Do" by Lil Jon & the East Side Boyz, pretty much any song by any rapper who wears bling bling/refers to "rocks"/"blunts"/drugs/etc. and any song that promotes gang fights and stuff like that
- Illiteracy: "Crank That (Soulja Boy)" by Soulja Boy, "Country Grammar" by Nelly, and pretty much any over-popular rap song that uses overly simplistic lyrics and especially Bay Area hyphy rap with all that "go dumb" stuff

While it is noble for Rev. Sharpton and others to speak out against the hateful rhetoric of right-wing bloviators like Limbaugh, making such speech unlawful on public airwaves won't really help much. Limbaugh might as well just move to Sirius Satellite Radio or XM; in fact, disgraced radio host Laura Schlessinger plans on making a comeback on XM next year. Schlessinger, known as "Dr Laura" (even though her doctorate is in physiology she frequently gave relationship advice on her radio show), infamously repeatedly used the N-word towards a black woman caller; Dr Laura apologised and resigned. Former terrestrial radio hosts who moved to satellite, such as Howard Stern, still have substantial followings in their new mediums. Furthermore, the Internet also provides a highly accessible forum for any wannabe Rush Limbaugh or Glenn Beck.

While the Supreme Court upheld the FCC indecency policy in the much-appealed 2009 FCC v. Fox case regarding accidental obscene language in live broadcasts (but got overturned by a fed appeals court the next year), the court has ruled variously on hate speech:
- In the 1942 case Chaplinksy v. New Hampshire, the high court ruled that fighting words (this case was about a Jehovah's Witness calling a police officer a "racketeer" and "fascist") aren't protected free speech.
- The 1992 case R.A.V. v. City of St. Paul dealt with a city ordinance "punishing the placement of certain symbols that were 'likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.'" The high court overturned the conviction of Robert A. Victoria, a teenager who burned a cross on a black family's yard. Now regarding hate speech on the radio chances are the Supreme Court could use this case to defend Limbaugh and co. as it's previously found a law banning expression inciting race-based hatred unconstitutional.
- 11 years later, in Virginia v. Black, the court found that a Virginia state law banning cross-burning that had intent to intimidate was constitutional as cross-burning was a "particularly virulent form of intimidation" yet overturned the conviction of a cross-burner due to flawed jury instructions that blurred ideology and intimidation intents.

Better than a "speech code" on the radio would be expanded media presence for the left wing via the Fairness Doctrine, which seeks balance, not censorship! Broadcasters have had since 1987 to be responsible when handling controversial issues...and what do you have? In 2007, a study by the Center for American Progress found: "91 percent of the total weekday talk radio programming is conservative, and 9 percent is progressive," and "2,570 hours and 15 minutes of conservative talk are broadcast on these stations compared to 254 hours of progressive talk—10 times as much conservative talk as progressive talk." In 2010, the top conservative radio host Rush Limbaugh had a weekly listenership of 15 million, about 6 times as much as the top liberal radio host (2.75 million each for Alan Colmes, Ed Schultz). Hate speech is just one of those situations in which the best solution is counter speech not a government ban. There's a reason why bloggers like PZ Myers can criticise and even denigrate religion all they want and not get arrested in the US.