When the American cartoonist Garry Trudeau received the George Polk Award earlier this month he remarked that Charlie Hebdo, the French satirical magazine whose offices were attacked by terrorist in January of this year, "wandered into hate speech." His remarks were met by sharp criticism of other journalists who claimed that Charlie Hebdo's satire, whether we like or not, must be fully protected by our rights to freedom of expression. So, last week, PEN American Center awarded Charlie Hebdo with its Freedom of Expression Courage award. 

 

This dispute over Charlie Hebdo magazine illustrates the essence of the problem in regards to two fundamental concepts of democratic media laws: a tightrope walk between media's right to free speech and the limits of the extreme speech that borders on hate. Implementation of those media laws through an independent regulative system is especially important for countries recovering from conflict as one of the four major applications of peacebuilding media (as I have written for this site in the first article of this series).    

 

 

It is very hard to execute the appropriate balance of control and protection of free expression. Too much regulation amounts to censorship and too little can lead to a chaotic and incendiary environment. Most societies consider freedom of expression a fundamental right of their democratic governing process. Today freedom of speech is almost universally accepted and formally protected by Article 19 of the Universal Declaration of Human Rights as the right that “includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” It is also featured in a legal treaty ratified by 167 states in the International Covenant on Civil and Political Rights (ICCPR).¹   

 

However, freedom of expression is not absolute; most societies have developed some restrictions based on their cultural contexts. Usually, freedom of speech is considered in conjunction with various other, sometimes conflicting rights, i.e. the rights to equality, privacy and reputation. Limitations on free speech exist in cases like defamation (libel for written words and slander for spoken words) and incitement to violence. Incitement to violence is explicitly forbidden by most judiciary systems and those systems allow appropriate interference with speech that inspires violence. 

 

 

Furthermore, each individual media system determines the additional conditions for regulation based on its socio-political environment. Some societies explicitly ban any speech that advocates hatred, promotes discrimination or calls for hostility. This is commonly known as hate speech laws, described as offensive expression that dehumanizes groups and individuals and harms particular racial, ethnic, or other minority groups. Many states have explicit laws and regulations that deal with hate speech even though their definitions of what constitutes hate speech differ. For example, despite its offensive nature, hate speech is permitted under the First Amendment of the U.S. constitution unless it creates a “clear and present danger” and is likely to cause violence or harm.² But in the European Union, restrictions on speech apply even in the case of abusive and insulting speech which might disturb the public order.

 

 

Many European countries have made the restrictions on speech more permissible than the US legal system. France has had a very complex set of laws that both protect and limit the press freedom as a result of particular historic events dating to the nineteenth century conflict between the Republicans and the Catholic Church. The freedom of expression featured prominently in the Republicans' pursuit of secularism (known as laïcité in France) who made blasphemy (insult against religion religion or God) legal in 1872. A number of restrictive laws were added later to limit the speech that discriminates against people based on their religion, ethnicity or race. However, the Republicans limited the freedom of speech when it was directed at the head of state which is the law of the land still in effect. And so in France today, it is legal to insult the church but not the head of state and its ok to offend religion but not the people who follow it. A number of other restriction (e.g. holocaust denial, wearing of face-covering veils in public or large crosses in schools) are distinctive to the French culture and quite different from practices in other states. 

 

Charlie Hebdo has always been known for its unembellished provocation, harsh critique and ridicule of the extreme right politics and religion in general.  The magazine's editorial team has been engaging in provocative caricature since its inception in the 1970s. Whether it was harsh and derogatory language aimed at politicians or open insults against the Pope John Paul II and the Prophet Mohammed, the controversy was always attached to the magazine. But, it also led to lawsuits. In the last twenty years, Charlie Hebdo has been convicted nine times in 48 trials. These lawsuits served as a litmus test for the state of media freedoms within the French legislative system. When the magazine was found in violation of the law, it was never due to hate speech but rather due to personal defamation. At the same time, the courts recognized the right of the magazine to caricature under the laws that protected free speech. 

 

 

 

When it comes to societies in violent conflict, regulation of expression is even harder to balance. In conflict, incendiary speech can easily inflame violence just as governments can justify censoring media under the disguise of preventing incendiary speech.  However, Bosnia and Herzegovina can proudly claim to have developed a very effective regulative practice in a relatively short period of time. After the war, the Bosnian media operated roughly twice the number of radio and TV stations per capita as the United States with most of them unlicensed and illegal. Heavily biased journalism made the entire media system – though pluralistic – counterproductive to peacebuilding.

 

To bring order out of this regulatory chaos, the OHR established the Media Election Commission in 1997 to ensure that the citizens had the necessary information to make an informed decision in the upcoming elections.  The commission later transformed into the Independent Media Commission (IMC) in 1998 and in 2003 became the Communication Regulatory Agency (CRA).  Just as the formation of the FCC and the OFCOM helped establish functioning media systems in the U.S. and the U.K., creation of an agency in charge of regulation was the crucial step in the protection of free speech and containment of hate speech in Bosnia and Herzegovina. 

 

Among the agency’s biggest accomplishments were the introductions of broadcast licenses, which required all of the existing broadcasters to register with the agency. Furthermore, the IMC implemented the Broadcasting Code of Practice, legally binding for all the broadcasters and “morally binding on reporters, editors and the owners and publishers of newspapers and periodicals.”  Finally, highly prominent were the sanctioning and executive orders that prevented incendiary speech from a many media outlets in Bosnia.  The most invasive were the two closures of non-compliant media houses: the first was in 1997 when the Serbian Radio Television Pale (SRT Pale) refused to refrain from inflammatory language and provide broadcasting time for alternative political views and the second was the seizure of transmitters from the Bosnian Croat television Erotel in February of 2000. Such resolute actions turned out to be an effective warning to the rest of the media that voluntarily accepted the rules and continued with more tolerant and inclusive reporting. Although the initial regulatory process in Bosnia might be best described as 'top-down' and 'trial and error,' its accomplishments are significant considering the quick containment of a dysfunctional media system which in 2001 reached the world’s highest number of broadcasters per capita. 

 

….

 

Fortunately today, the protection of free speech and prevention of incitement have become provisions of almost all modern legal systems in the world and a target of their media regulations. Every single media system across the world is a subject to some kind of restraint. It is however the degree of the restraint that distinguishes free from tyrannical societies. While tyrannical societies use regulation to restrict all dissenting opinions, free societies use the same regulation in order to protect free speech and diversity of opinion. In order to exercise free speech in the media, legal boundaries must be set up against speech that is considered incendiary. Regulative guidelines in the media environment simply outline the rules so that media practitioners and journalists can count on the protection of their non-incendiary, free speech. There are always going to be contrasting opinions about the fine line that stands between the rights to free speech and the potential harm of hate speech, just like in the case of Charlie Hebdo.  A thorough understanding of the cultural context of such speech and a deferral to the appropriate regulatory rules and practices might be the only sensible way to handle such delicate issues.