Freedom of Speech and Social Networks in the Age of Terrorism: A Comparative Analysis

Fulvia Abbondante

SUMMARY: 1. Hate Speech: An Uncertain Definition. - 2. Freedom of Speech in the Age of Terrorism: the USA Case. - 3. Hate Speech on Social Networks in the USA. — 4. European Models of Offline and Online Freedom of Speech. - 5. Hate Speech on the Internet in Europe between Private and Collateral Censorship. - 6. European Union Proposal on the Prevention of Terrorist Content Online. New Regulation, Old Issues. - 7. Conclusion.

Hate Speech: An Uncertain Definition

The concern that the contemporary jurist feels in investigating the thorny question of limits to the freedom of expression is born, not only from the usual difficulty of imagining a relatively stable point of balance between the protection of this fundamental right and other values, but also from the inadequacy of the traditional conceptual categories he has been confronted with until today when the relationship free-dom/limits is transferred into the intangible dimension of the Internet Network. The critical factors appear even more evident when addressing the theme of hate speech, because of the intrinsic difficulty of finding a consistent and satisfactory definition of this phenomenon even in the offline world. As a matter of fact, it is arduous to obtain a homogenous juridical description of this kind of expression. It is, in general, hard to distinguish hate discourse from a simple criticism (which, in some cases, uses strong words without any intention of incitement to hate), because the content of speech is conditioned by the context, the intention of the speaker and the impact on the public.¹ Moreover it is complex to define the term “hate” in a clear manner since it is an emotion that everyone expresses in a different way. However, according to numerous international and supranational documents hate speech might be classified as all forms of expression addressed to a collectivity of people because they belong to a discriminated group in a way that promotes, incites or justifies hatred.^[1] Two positions on the constitutional compatibility of the regulation of hate speech confront each other. On the one hand, some scholars underline the importance of freedom of expression for personal self-determination and for deliberative development of public opinion so that any restriction of this right has to be limited only in particular cases.^[2] On the other hand, there are those who emphasize the role of hate speech in intimidating vulnerable groups and attacking their sense of dignity with the result that the free speech of minority communities is limited and the principle of equality is compressed. Recently other kinds of hate speech have emerged such as propaganda and an apology for terrorism. In this scenario the values at stake are freedom of speech and national security. Many countries have adopted national legislation which has restricted fundamental freedoms to protect public order. With the development of the Internet and the opportunity for each user to spread their thoughts easily and globally, the question of hate speech has raised new and unprecedented issues. The method of communication is not a secondary aspect — as it clearly emerges — since the Internet has turned the diffusion of thought from quantitatively limited and circumscribed (in time and space) into a capillary, global and permanent phenomenon. This chapter analyses the problems related to the regulation of hate speech and terrorist speech both offline and online by comparing the different approaches and solutions in the USA, European countries and the European Union.

• [1] •Andrew Sellars, ‘Defining Hate Speech’ (2016) 20 Berkman Klein Center Research Publication https://ssrn.com/abstract=2882244 accessed 10 December 2016. 2 Thomas Davidson and others, ‘Automated Hate Speech Detection and the Problem of Offensive Language’ (Proceedings of the Eleventh International AAAI Conference on Web and Social Media 11 March 2017) https://www.aaai.org/ocs/index.php/ICWSM/ICWSM17/paper/view/15665/14843.
• [2] Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (Oxford University Press 1986); Robert C. Post, ‘Legitimacy and Hate Speech’ (2017) (32) Constitutional Commentary 651. 2 Mar)' Ellen Gale, ‘Reimagining the First Amendment: Racist Speech and Equal Liberty’ (1991) St. John’s Law Review (65) 119; Robert Delgado, ‘Words that Wound: A Tort Action for Racial Insults, Epithets and Name Calling’, in Mari Matsuda and others (eds), Words that Wound: Critical Racial, Assaultive Speech and the First Amendment (Westview Press 1993); Alexander Tsesis, ‘Dignity and Hate Speech: Regulation of Hate Speech in a Democracy’ (2009) Wake Forest Law Review (44) 17-23; Jeremy Waldron, The Harm in Hate Speech (Harvard University Press 2012). 3 Abrahms v. United States (Holmes, dissenting opinion) (1919) 250 U.S. 616; Gitlow v. New York (1925) 268 U.S.652. 4 Schenck v. United States (1919), 249 U.S. 47, 52; Frohwerk v. United States (1919) 249 U.S. 204; Debs v. United States (1919)249 U.S. 211.