MINELRES: Meeting Examines Hate Crimes & Racist, Xenophobic & Anti-Semitic Propaganda

[MINELRES moderator]

Original sender: Helsinki Commission Digest <digest@csce.gov>


Rep. Christopher H. Smith, Chairman 
Senator Ben Nighthorse Campbell, Co-Chairman

VOLUME 37
NUMBER 6
June 30, 2004
www.csce.gov  


OSCE Meeting Examines Hate Crimes
and Racist, Xenophobic and
Anti-Semitic Internet Propaganda
                                                                                                    
"I disapprove of what you say, but I will defend to the death your right
to say it."
- Voltaire

By Erika Schlager
CSCE Counsel on International Law

On June 16 and 17, 2004, the Organization for Security and Cooperation
in Europe's participating States met in Paris for a meeting on "the
Relationship between Racist, Xenophobic and Anti-Semitic Propaganda on
the Internet and Hate Crimes."  The meeting was part of an OSCE focus
this year on racism, xenophobia, discrimination, and anti-Semitism and,
like two other special human dimension meetings scheduled for this year,
was mandated by the OSCE Ministerial Meeting held Maastricht last
December.

Conferences on anti-Semitism (held in Berlin, April 28-29) and racism,
discrimination and xenophobia (to be held in Brussels, September 13-14)
are intended to build on high-level meetings already held last year in
Vienna on those same subjects. The Paris meeting focused on a specific
issue - the Internet - related to the overall topic.  

The convocation of a special meeting on the relationship between racist,
xenophobic and anti-Semitic propaganda on the Internet and hate crimes
was the product of advocacy by non-governmental organizations such as
IN@CH, the International Network Against Cyber Hate, and the leadership
of the Government of France.  IN@CH had previously raised awareness of
the problem of hate mongering on the Internet at the OSCE's annual Human
Dimension Implementation Meeting in 2002 and, at the 2003 Human
Dimension Implementation Meeting, hosted a side-event on the subject. 
Historically, the OSCE has been most effective when governments gain a
sense of ownership of an issue and exercise leadership in moving it
forward.  Non-governmental organizations typically play a critical role
in identifying concrete human rights problems and bringing them to the
attention of governments.

The U.S. Delegation to the Paris meeting was jointly led by Ambassador
Stephan M. Minikes, head of the U.S. Mission to the OSCE; R. Alexander
Acosta, Assistant Attorney General for Civil Rights; and Dan Bryant,
Assistant Attorney General for Legal Policy.  Markham Erickson, General
Counsel from Net Coalition; Brian Marcus, Director of Internet
Monitoring; Anti-Defamation League, and Ronald Rychlak, Professor of Law
and Associate Dean, University of Mississippi Law School, joined the
delegation as Public Members.  

Other members of the delegation came from the Department of State, the
Department of Justice, and the Helsinki Commission.  The United States
Delegation engaged fully in the 2-day meeting, making presentations in
all formal sessions and side events, holding bilateral meetings, and
conducting consultations with non-governmental organizations.  Assistant
Attorney General Dan Bryant was a keynote speaker.

Although the meeting was mandated to examine the relationship between
hate propaganda on the Internet and hate crimes, few participants
actually discussed the nexus between these two phenomena.  For many
participants, the existence of a cause-and-effect relationship was
simply an article of faith or intuition, and did not lead to an
exploration of the nature of that relationship.  As a consequence, the
meeting made only a marginal contribution to an understanding of which
populations might be most vulnerable to the influence of hate
propaganda, whether hate propaganda on the Internet fosters some
particular kinds of hate crimes more than others, or whether the effect
of hate propaganda on the Internet plays a different role in fostering
violent crimes than, for example, weak law enforcement or public
officials who make or refuse to condemn racist, anti-Semitic or
xenophobic remarks.  It is not clear whether web-based hate propaganda
is related to spikes in hate crimes that have occurred in some countries
in recent years, or why, as seems to be the case, some places with
unfettered Internet access have relatively lower levels of hate crimes
than other places with similarly unfettered Internet access.

Nevertheless, participants did address a broad range of subjects related
to hate propaganda, hate crimes and the Internet over the course of the
two days.  Formal sessions focused on "Legislative Framework, Including
Domestic and International Legislation Regarding Propaganda on the
Internet and Hate Crimes," "The Nature and Extent of the Relationship
between Racist, Xenophobic and anti-Semitic Propaganda on the Internet
and Hate Crimes," "Public and Private Partnerships in the Fight Against
Racism, Xenophobia and Anti-Semitism on the Internet - Best Practices,"
and "Promoting Tolerance on and through the Internet - Best Practices to
Educate Users and Heighten Public Awareness."   Side events were held on
"Guaranteeing Media Freedom on the Internet," "'The IN@CH Network' -
Dealing with Cyber Hate on a Daily Basis," "Identifying Examples of Hate
Speech: A BBC Monitoring Project," "Filtering: Princip, the Solution
that goes beyond Key Words," "Satellite Television and Anti-Semitism:
How to Combat the Dissemination in Europe of Racist and Anti-Semitic
Propaganda through Satellite Television?" and "Promoting Awareness of
Anti-Semitism in the European Classroom: Teacher Training, Curricula,
and the Internet."

A number of speakers, including U.S. Government representatives,
discussed the legal mechanisms for action that might be taken when hate
propaganda rises to the level of a crime in and of itself, such as when
the hate propaganda constitutes a threat or incitement to a criminal
action.  Many speakers discussed the role of non-governmental
organizations in monitoring and facilitating the removal of hate sites
from the web when they violate the terms of agreements with their
Internet service providers (ISPs).  Some participants described ways in
which the pernicious effects of hate speech can be mitigated or
countered.  For example, a Canadian non-governmental organization, Media
Awareness Network, made a presentation on programs in Canadian schools
designed to teach children to distinguish between hate propaganda sites
and legitimate information sources.  Vividly illustrating the challenges
and risks for those organizations which monitor and report on the
activities of extremist hate groups, the offices of People Against
Racism, a Slovak non-governmental organization that participated in
Paris meeting, were burned out only weeks before the meeting opened. 

Although there was broad agreement on the goal of combating hate
propaganda, some participants flagged concerns about the methods that
might be used to that end.  For example, industry representatives
provided some insight regarding difficulties faced due to the
technological challenges of tracking, filtering, or blocking hate
propaganda transmitted through the Internet, emails, or text messaging. 
Some concepts of regulation, they argued, could not be effectively
implemented given the state of current technology.  Asking ISPs to be
responsible for screening all content on the web is not feasible,
anymore than making telephone companies responsible for everything that
gets said over the telephone.

A few participants drew attention to factors other than hate propaganda
on the Internet that may contribute to hate crimes.  A Russian
non-governmental representative, for example, remarked that there was
more anti-Semitism in the Russian State Duma than on Russian-language
web sites.  And, illustrating the complexities of deciding exactly what
constitutes hate propaganda, one non-governmental representative argued
that evangelical Christian sites that reach out to Jews should be
considered anti-Semitic.  Similarly, the Russian delegation identified
the web sites of the Jehovah's Witnesses and Hare Krishnas as "promoting
hate doctrines."

Other concerns were voiced as well.  Some non-governmental groups
suggested that ISPs were ill-suited to determine whether web sites
constituted hate propaganda or not.  One described an ISP that removed
an innocuous site devoted to English philosopher John Stuart Mill after
that non-governmental organization - testing the bases upon which ISPs
would act - urged the ISP to take down the allegedly racist site.
Regulation of hate propaganda by ISPs, they concluded, lacked
transparency and accountability.

Some speakers warned that combating hate propaganda could be used as a
pretense for sanctioning views disfavored by the regime.  The
International League for Human Rights suggested that states with "weak
democratic institutions and traditions" should not be entrusted with
additional powers of control beyond those that already exist.  Indeed,
some speakers argued there have already been instances where laws
against incitement to racial hatred (or similar laws) have been
misapplied for political or other purposes.  The ongoing fight against
terrorism, they suggested, increases that danger.  In fact, only days
after the Paris meeting concluded [June 22], the Paris-based watchdog
Reporters without Borders released a report entitled "Internet Under
Surveillance," documenting repression of the Internet around the globe. 
One of the U.S. recommendations made during the meeting was that the
OSCE Representative on Freedom of the Media should examine whether hate
speech laws are being enforced in a discriminatory or selective manner
or misused to suppress political dissent.  The full texts of statements
circulated at the Paris meeting by the United States and other
participants are available through the OSCE's Internet web site at
http://www.osce.org/events/conferences/anti-racism.

One of the sub-texts of the meeting was the putative "Atlantic Divide."
In the context of discussions of "cyber hate" and hate crimes, this
phrase was used to describe the perceived gulf between the United
States' and Europe's approaches to hate propaganda.  According to the
adherents of the "Atlantic divide" theory, the United States is a
free-speech Wild West, where speech has no limitations or legal
consequences.  "Europe," in contrast, is portrayed as a unified region
speaking with one voice, populated by those who have wisely learned from
the horrors of World War II that dangerous speech can and must be
sanctioned and that governments are easily capable of performing this
task and do so as a matter of course.  The "Atlantic Divide" perception
was fostered by Robert Badinter, former French Minister of Justice and
current president of the OSCE Court of Arbitration and Conciliation,
who, in a keynote address, dramatically appealed to the United States to
"stop hiding behind the first amendment."

Others, however, implicitly or explicitly rejected this overly
simplistic image.  In the United States, a long chain of legal authority
recognizes that the right to free speech and freedom of expression is
not absolute.  As U.S. Public Member Robert Rychlak noted, "When speech
crosses the line and becomes more than speech - when it presents a clear
and present danger - the authorities must be prepared to step in and
take legal action.  At that time, the speech may constitute an actual
threat, true harassment, or be an incitement to imminent lawlessness." 
Department of Justice officials separately gave examples of numerous
recent cases where individuals were prosecuted for sending email
messages that rose to the level racially motivated threats.  While it is
important not to over-read these or related cases - criminal sanctions
based purely on one's opinion remain prohibited - they should dispel the
misimpression that there are no limitations whatsoever on speech or the
consequences of speech in the United States.

Conversely, the context of the meeting also provided an opportunity to
reflect on the image of Europe as a continent uniformly bound in a
single regulatory approach to hate speech.  In reality, the national
laws relating to hate speech of individual European countries vary
considerably; what constitutes prohibited speech in one country may be
permitted in the next.  Moreover, both national courts and the European
Court of Human Rights apply balancing tests to speech restrictions that,
while not identical to balancing tests applied by U.S. courts, are not
entirely dissimilar.  The Hungarian Constitutional Court, for example,
in May 2004 held that a proposed hate speech law would violate the free
speech provisions of the Hungarian Constitution.  Just before the
opening of the Paris meeting, on June 13, the French Constitutional
Council struck down parts of a new law governing communication over the
Internet (adopted to implement a June 8, 2000, European Union directive
on electronic commerce). 

The United States Helsinki Commission, an independent federal agency, by
law monitors and encourages progress in implementing provisions of the
Helsinki Accords.  The Commission, created in 1976, is composed of nine
Senators, nine Representatives and one official each from the
Departments of State, Defense, and Commerce.

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