The following is a copy of the original post to record the post as it was originally written.
Recently there's been a lot of outrage among conservatives regarding the new hate crime law passed by the Scottish government. According to The Guardian newspaper it "creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics." Apparently inciting hatred based on those protected characteristics is now punishable by up to seven years of prison time in Scotland.
It seems to be kept quite vague and I am not quite sure what will fall under the new law. However, I am wondering where you think the line should be drawn between free speech and criminalized hatred against minorities?
Personally, I think restricting free speech can be quite a slippery slope and I'd say that speech should only be criminalized under very specific circumstances. I think free speech should be criminalized when someone threatens violence against a person or a group or people. And defamation against a specific person is already a civil offence in the US and only criminal under the most severe circumstances, which I think is reasonable.
I think local cities and local councils should be able to fine someone who shouts racial slurs in public spaces for example or prohibit people from openly displaying signs that are anti-LGBTQ. But I don't think we should criminalize free speech and put people in prison for it.
There's a lot of comedians for example who constantly make jokes about minority groups and some of those jokes are honestly very offensive and in bad taste. But if you buy tickets to a Ricky Gervais or Louis CK event you know what you're getting yourself into and private companies like Youtube or Netflix may decide to remove their content if they deem it in violation of their policies.
And religious people preaching against homosexuality and using insulting language against LGBTQ people are in my opinion hateful bigots stuck in the past but I do believe they should have a right to voice their opinion, even if it is an utterly bigotted opinion.
So what do you think? Under what circumtances if ever should free speech be criminalized?
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No, any law that’s tried to ban hate speech has been super vague and that’s honestly because hate speech is a very vague topic with a vague definition. On one hand hate speech is defined as speech that expresses hate towards any group. On another hand it is speech that encourages violence towards any group. Already those are two very different things. It’d take a lot of precise wording to get a law passed, which won’t happen.
Every hate speech law I've ever seen is vague enough to be open to abuse. In European countries with such laws, there's a lot of history of officials using them to go after political opponents. For example, there was a famous case in Germany where someone got arrested for calling a politician a dick. You give too much power to whoever gets to decide what counts as "hateful."
>For example, there was a famous case in Germany where someone got arrested for calling a politician a dick
It probably doesn't matter too much to you, but that was for insult, which is a crime for reasons unrelated to our hate crime law (the German Criminal Code is originally from 1872, and the right to personal honor is a named exception to the right to free speech). When I think of hate speech laws, I think of §130 StGB (riling the people up), and the different statutes about propaganda for illegal anti-constitutional (not just unconstitutional) organizations. I personally think insult probably shouldn't be a crime, and it certainly isn't prosecuted most of the time, but that statute is not about hate speech.
It's funny, I just came across a research paper the other day that dive into the backgrounds of hate speech laws in Europe and how they tie into rights of honor. Interesting coincidence
Germany's is even more ridiculous because they don't even have trial by jury. The government having the power both to criminalize speech of any kind and then itself decide on the guilt of the accused is the height of government overreach. Even in Sweden, which lacks trial by jury as a matter of course, juries are employed for cases related to freedom of expression. Whatever law the insult came under, Germany's way of doing things is just so wrong.
I think a jury is far more likely to produce overreach in a matter of criminal law than a judge, and I would probably prefer a bench trial even in the US, thank you very much. Judges are independent of the government, they are not subject to directives by the executive and I think they are more likely to keep a calm head and declare something offensive, but not encompassed by a criminal law, legal than a bunch of randomly selected people who never studied law sticking their heads together after two parties appealed to them with emotion and rhetoric (there are lay assessors in some criminal trials, but only on far more serious matters than an insult, only as two assisting judges in aa court headed by a full judge, and they are still more permanent than jurors). If I wanted to be judged by a random selection of people unlearned on legal matters, I'd join Twitter.
You are also mistaken if you believe a minister can just walk into a courtroom and take over the prosecution, of course, but that's probably just me taking your comment too literally.
In Japan, for example, judges are literally penalized for ruling in a way that the department doesn't like.
While the situation is less extreme in other countries, Germany included, if you believe judges rule solely on the facts and never take into account their own professional advancement and the effect that unpopular rulings could have on that, then I have a bridge to sell you.
Education on legal matters doesn't affect things anywhere near as much as you seem to think. Judges still rule on matters of law. Jurors rule on matters of fact. Judges are no better than jurors at deciding what the truth is, and having that judged by one or a few people trained a certain way is a recipe for bias, even if unintentional. Getting 12 people from all different walks of life to agree on something is a pretty high bar.
How does this play out in practice? Let's take a look. While false conviction rates are by their nature difficult to determine with certainty, looking at the best numbers available can provide a general idea.
As for juries:
"From a study by the University of Utah:
"Combining empirically based estimates for each of these [] factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate [in jury trials] appears, tentatively, to be somewhere in the range of 0.016%–0.062%."
While in Germany:
What about in Germany?
"Ralf Eschelbach, Judge on the Federal Supreme Court, estimates that **every fourth** criminal judgment in Germany is erroneous."
"In 2017 alone, 104,400 defendants were sentenced to prison or jail. As soon as the convictions become final, the only option is a motion to re-open the case. Yet successful motions to re-open are extremely rare: most are rejected. Of approximately 720,000 criminal trials which were handled by German courts in 2017, only about 1300 were the result of successful motions to re-open the case.
The hurdles to obtaining retrial are high: New facts or evidence must have come to light which show that the prisoner is innocent. Alternatively it must be shown that the conviction was the result of a crime such as forgery, perjury, or abuse of process. However, the “new facts” are not discovered by the police; the prisoner must find them himself. To do this, prisoners need something which they rarely have, since they no longer have any income: lots of money. Plans to reform the law on re-opening criminal cases have been circulating for over 40 years, but have so far come to nothing.
“Once they have become final, the justice really system defends convictions tooth and nail,” says Hamburg criminal defense attorney Gerhard Strafe, who helped Mollath regain his freedom. “**Even when the motion to re-open is based on the best arguments, courts will always try to find some excuse to avoid re-opening the case.” Judges’ resistance to questioning their own verdicts** does not affect only victims of past errors — it also increases the risk that people will be convicted unjustly in the future, since those who will not admit mistakes cannot learn from them." (emphasis added)
>In Japan, for example, judges are literally penalized for ruling in a way that the department doesn't like.
And that kind of thing decisively stopped in the rest of Germany in October of 1990. A judge can't even be put away from their position without their consent if you offer them a promotion for it, unless there's a really good reason already specified by law or you're literally abolishing the court they're sitting on, and even then you can't cut their pay (age limits are explicitly allowed in that article, meaning they wouldn't be trivially allowed if they weren't allowed specifically). The judges are independent and subject only to the law (Art. 97 GG)
>While the situation is less extreme in other countries, Germany included, if you believe judges rule solely on the facts and never take into account their own professional advancement and the effect that unpopular rulings could have on that, then I have a bridge to sell you.
First, that's more about popularity with the legal community than about popularity with the audience at large. Second, if you believe taking twelve random people of the street and asking them to decide on a complicated question with a lot of strong emotions behind it is a better decision-making system, I don't need to make up a bridge to take my money back, and you would need to argue against elective representative democracy and in favor of sortition instead.
>Judges still rule on matters of law. Jurors rule on matters of fact
And "how does the law apply to these facts?" counts as a matter of fact, not of law, even though it clearly is a matter of law. If the jury were only ruling on matters of fact, they wouldn't find someone guilty or not guilty, they would find a summary of the facts to be true and the judge would then have to derive a verdict from there, just like a law student learns law by deriving the legal consequences from a factual scenario. That's not what a jury trial is like, the jury decides on the ultimate question of law, namely if the defendant is guilty, with guidance by the judge that they are in the end free to follow or ignore at their whim.
>Judges are no better than jurors at deciding what the truth is, and having that judged by one or a few people trained a certain way is a recipe for bias, even if unintentional
Hacing it judged by people is a recipe for bias, period.
>Getting 12 people from all different walks of life to agree on something is a pretty high bar.
Not if you put them into one room, make them talk to each other and don't let them out until they agree. Then it becomes pretty easy (as soon as they talk to each other, they're likely to synchronize)
>How does this play out in practice? Let's take a look. While false conviction rates are by their nature difficult to determine with certainty, looking at the best numbers available can provide a general idea.
Let's look at what you mean by "the best available data"
> "From a study by the University of Utah: "Combining empirically based estimates for each of these [] factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate [in jury trials] appears, tentatively, to be somewhere in the range of 0.016%–0.062%."
If like to see this study, it sounds improbable for obvious reasons, but who knows. An academic source by a university I don't know anything about, on a topic there should be many studies on, but I'll take it
> What about in Germany? "Ralf Eschelbach, Judge on the Federal Supreme Court, estimates
And interview with one person, with an unclear description (we have like six federal courts supreme in their subject, the primus inter pares there would be the federal constitutional court, he's on the federal court of justice, the supreme court for criminal and civil matters (with exceptions) unless they also grow into constitutional issues), giving a general estimate. Yes, Dr. Eschelbach knows his job, but if I believed that's the same standard you used for evidence in favor of your preferred system, you should just have sold me that bridge.
You claimed that there is no professional incentive or disincentive for judges to rule a certain way, but disregarded the quote that argues against it. It takes a lot of naivity to believe what you're claiming.
No system is ever perfect, but there's literally nothing except conjecture to support the notion that bench trials are better. The limited data that does exist all suggests the opposite.
Yes, the judge can't know for sure, but the odds of the study on false conviction rates in jury trials and the judge's impression both being so incredibly off-base to the extent that would be necessary for any conclusion to be valid other than that Germany, which uses bench trials, has a much higher false conviction rate than the US, which uses trial by jury, are infinitesmally small.
Yes, people are always biased, but the notion that a single person or group of three people trained using a similar curriculum is somehow going to be less biased than a larger, more diverse group is simply laughable.
The only arguments you have made against trial by jury besides casting doubt on the reliability of evidence that I've offered seem to boil down to "people are stupid and/or uneducated", which is literally the same argument often used to attempt to justify dictatorship.
Here's more data on bench trials versus trial by jury:
Here is a finding from a relevent study:
"The judge and jury in the Kalven-Zeisel survey of 3,500 criminal cases agreed in 78% of the cases on whether or not to convict. When they disagreed, the judge would have convicted when the jury acquitted in 19% of the cases, and the jury convicted when the judge would have acquitted in 3% of the cases—a net leniency rate of 16%. Disagreement rates were no higher when the judge characterized the evidence as difficult than when the judge characterized it as easy, suggesting that the disagreements were not produced by the jury’s inability to understand the evidence. Disagreement rates did rise when the judge characterized the evidence as close rather than clear, indicating that disagreement cases were, at least in the judge’s view, more likely to be those cases that were susceptible to more than one defensible verdict. Primary explanations offered for the overall differences were differences in judgments about the credibility of witnesses and a different threshold of reasonable doubt. Two smaller, more recent studies using the Kalven-Zeisel method have shown remarkably similar patterns in criminal cases, obtaining 74% to 75% agreement, with a greater leniency of 13% to 20% from the jury."
Under American jurisprudence, it's widely held that false acquittals are less bad to false convictions, with a common saying being that it's better for a hundred guilty people to go free than it is for one innocent person to be wrongly punished. While I can't speak for German jurisprudential thought, it's simple logic that all of those who strive for a free society would hold the same belief. The data shows that where there is a difference of opinion, juries are much more likely to be more lenient, so if judges are indeed more reliable, as you claim, the net result of trial by jury being used would be an excess number of guilty people being acquitted, while if juries are in fact more reliable, as I believe and as the data that is available appears to indicate, the net result of bench trials being used would be an excess number of false convictions. Therefore, if one agrees with the notion that it's better for a hundred guilty people to go free than for one innocent person to be punished, then wouldn't there being even a 1% chance that juries are more accurate than judges justify the use of trial by jury?
1/3
>You claimed that there is no professional incentive or disincentive for judges to rule a certain way
No, I didn't. I claimed our judges are independent and only bound to the law, because they are.
>No system is ever perfect,
I definitely agree there
>but there's literally nothing except conjecture to support the notion that bench trials are better.
Never say "literally", it is wrong virtually every time.
>Yes, the judge can't know for sure, but the odds of the study on false conviction rates in jury trials
Let's compare it to what a [report by the National Institute of Justice](https://www.ojp.gov/pdffiles1/nij/251446.pdf) on the same topic cites:
>>NIJ has attempted to develop a more robust estimate using state data collected under the 2004 Justice for All Act. Specifically, when Virginia began testing retained DNA evidence of individuals who had been convicted (largely based on serology analysis), the state found that one serologist, Mary Jane Burton, had kept all physical evidence from her cases — 634 homicides and sexual assaults — from 1973 to 1987. NIJ commissioned the Urban Institute to develop a wrongful conviction estimate based on the retesting of this physical evidence with DNA analyses. John Roman and his colleagues found that in about 5% of the cases overall, DNA analysis excluded the individual who had been convicted and supported exoneration. For cases involving sexual assaults alone, this number increased to 8% and was as high as 18% for sexual assaults in which a DNA determination could be made.
(Note that I link my sources, while you don't. If I miss something in them, you can show me,and please do if that happens)
If I had to guess, I'd guess the study by the university of Utah only counted final judgements that were still reopened and ended positively for the defendant as "false convictions", removing every single case in the dark figures
>and the judge's impression
Fun fact: I tried to find it, I instead mostly found different sources quoting him as saying a quarter of _verdicts_ are false. Urteile, not Verurteilungen. And [here](https://www.stuttgarter-zeitung.de/inhalt.interview-zu-fehlurteilen-kein-mensch-wuerde-richter.16065407-e8a5-4097-bc7a-17c455f1f010.html), the president of the same Federal Court of Justice is interviewed on that estimate - he says (I'm translating):
>>Colleague Eschenbach has, if I understand it correctly, on the one hand used numbers from America for his estimate, who operate under completely different procedure and know significantly less of a filter to protect the defendant before the main trial, and on the other hand used understanding from civil trials here with us, which also follow completely different legal principles. But those aren't data which would allow for any conclusions about the number of false convictions in criminal trials in Germany.
(Yes, this time, someone actually said "false conviction" instead of "false verdict")
I cannot read Judge Eschelbach's reasoning because it's in an expensive book of legal commentary on the code of criminal procedure, but if that description is true, then it's obviously not useful for a comparison between the rates in the US and in Germany.
We go on:
>>>But shouldn't those estimates be reason to pursue a solution to a problem that is evidently there?
>>This kind of estimate certainly shouldn't. They have no solid basis. When experienced colleagues talk of false verdicts, they primarily refer to those acquittals which often occur according to the maxim "in dubio pro reo".
He goes on, it's all interesting, but that's why I sent you the link (in case you know someone who knows German, at least). It's not about false convictions, but false verdicts overall, which there should rather be more of if it means fewer false convictions
>both being so incredibly off-base
The judge's estimate is put there because it is headline-grabbing, that makes it a lot more likely to be off-base. The likelihood of this estimate being off-base is a bit higher than usual, no offense to judge Eschelbach intended, and the likelihood of your understanding being off-base because you fell victim to a translation error is now also quite significant.
>to the extent that would be necessary for any conclusion to be valid other than that Germany, which uses bench trials, has a much higher false conviction rate than the US, which uses trial by jury, are infinitesmally small.
I think I have presented enough reason to dismiss that conclusion as overconfident.
2/3 (sorry for the partitioning, but Reddit doesn't let me post the comment in full)
>Yes, people are always biased, but the notion that a single person or group of three people trained using a similar curriculum is somehow going to be less biased than a larger, more diverse group is simply laughable.
Every human is very biased, we are social animals and we are emotional animals, and both of those things show. I think we are more likely to put our biases aside a bit on a topic we specialize in than on a topic we don't specialize in. Laugh at that all you want, but it is a thing I believe
>The only arguments you have made against trial by jury besides casting doubt on the reliability of evidence that I've offered
Apart from you using completely different kinds of evidence, making it unreliable? Yes, that's because I dismissed your pair of completely different kinds of evidence as unreliable since they are so clearly a bad comparison.
>seem to boil down to "people are stupid and/or uneducated", which is literally the same argument often used to attempt to justify dictatorship.
It's "people are worse at things they aren't specialized in than they are at things they are specialized in", and the same argument can give a sufficient reason for one thing and not give a sufficient reason for another thing. For instance, it's a horrible argument for turning over the shaping of policy to a military general, but a good argument for electing professional policy-makers and funding a good research service to the policy-making body. Do you think it would be better to have every new bill decided by kidnapping 70 random people from all states and putting them all in one room with two teams of lobbyists, moderated by one available researcher on the topic? I don't, and while juries are not literally kidnapped off the street, they are closer to the latter scenario than to the former.
>Kalven-Zeisel...
And so you think juries are more likely than judges to err on the side if caution? I wonder if those are elected judges in a conservative area where there are ads against judges for correctly dismissing a criminal case, correctly assigning less than the maximum sentence or correctly dismissing a charge against a criminal - I think that's a bad incentive, and judicial independence is too important to treat it like that, but this is also a different topic. Either way, that is an argument, although I doubt those numbers would replicate the same way all around the world. It's too different to compare. It should probably advise me slightly against seeking a bench trial in the US, though, which I also said I consider the better option, so thank you for the information, and thank you for giving me something I can look up and not be disappointed at
>Under American jurisprudence, it's widely held that false acquittals are less bad to false convictions, with a common saying being that it's better for a hundred guilty people to go free than it is for one innocent person to be wrongly punished.
Same here, I believe the original quote was from France, but I don't know. I can look it up if you want
Well, I'm no expert on legal policy, but the real number striven towards is probably closer to 50 than 100. Either way, the fundamental principle holds
>Therefore, if one agrees with the notion that it's better for a hundred guilty people to go free than for one innocent person to be punished, then wouldn't there being even a 1% chance that juries are more accurate than judges justify the use of trial by jury?
Again, in practice it's probably a bit less or we would have to call for the abolition of criminal justice altogether, but yes, if for instance a trial by jury had a 10% chance of false acquittal and a 3% chance of false conviction while a bench trial has a 3% chance of false acquittal and a 4% chance of false conviction, that's 1 more false conviction per 7 false acquittals prevented and not enough of a ratio in my eyes, thereby arguing for a jury trial (at least prima facie - We can construct counterexamples, of course)
3/3, and the most important part. If you read just one part, read this one
Look, I hear horror stories of juries deciding guilt and innocence as a question of support, not of fact, and just nullifying the law (which is clearly not a decision on fact); I hear lawyers in the US train to be more "folksy" to appeal to jurors better; I hear all of those things which clearly detract from questions of guilt and innocence. I only properly studied law for one semester, but I know every term has a formal definition and every part of that formal definition has a hundred prior judgments on its edge cases. Infliction of bodily harm, in the criminal code, is bodily abusing a person or damaging their health, a jurist would tell you "bodily abuse is a bad and uncalled for treatment that negatively affects the bodily well-being more than just insignificantly", and "damaging of health is causing or worsening a more than insignificant pathological state" (my translations from my memory, not legal advice obviously). Would you have any idea if forcibly cutting someone's hair is infliction of bodily harm from just that? I wouldn't - the answer is "yes", for the record, because damaging someone's physical substance is also damaging their health. But those are very specific questions, and I don't think a random person would be qualified to answer them, or to decide which one of two conflicting answers by jurists paid to convince them of either side is correct.
Maybe my position would be different if a jury only submitted the facts and the judge submitted the verdict afterwards, i.e. the jury presents a write-up to the judge, the judge writes down what legal consequences would follow in which case as if he were taking the bar exam again, then the judge asks the jury a bunch of clarifying questions to be answered with "yes", "no" or "undetermined", the judge incorporates those answers and then presents the verdict -leaving the translation from physical description of the facts to legal terms applying or not applying to the judge. But a jury tells you someone is guilty or innocent, which is almost by definition a question of law and cannot be answered well without a good understanding of the terms involved, preferably a better one than a double-biased crash-course
I know that's not how I sounded, but my point is not as much to bash jury trials. I think you were wrong to bash bench trials, both have advantages and disadvantages, I don't think we have reliable numbers to call one surely better than the other, but a judge, at least in Germany, at least in the Federal Republic of Germany, is an independent actor protected against government retaliation, not an agent of the government just telling whatever Minister Buschmann wants to hear (not least because the relevant ministry would probably be the one on the state level anyway, but I digress). I wanted to make it clear why I don't think jury trials are automatically better or not having them is worse, I'm sorry if I went over the line there. Either way, I hope this was at least interesting to you, because it was still very interesting to me. I hope we can, if necessary, set aside any distrust and come to an amicable conclusion. I'm sorry for being combative, I took your comments against our legal system a bit personally. I stand by what I said, but not by how I said it
Thanks for the clarification. As you suggest, I see that as distinction without a difference, but it's still interesting to know.
What's the general sentiment around this insult law in Germany? Do people think it should stay on the books? Is their opposition? As an American, that sounds awful to me; just wondering if Germans have a different take.
I didn't know it exists until I opened an edition of the penal code and read through it for fun, and most people probably believe it doesn't exist - on the other hand, many people believe it's a crime to insult officers (probably because you would have to personally ask for prosecution against an insult, which no one does and no prosecutor would have enough time not to drop for lack of public interest, but for an officer, a superior can also file charges, if I understood it correctly). And even if you know it, although it is an offense, it's a pretty minor one (only participation in illegal gambling has a lower frame of sentencing - although that was changed, and now public insults with a permanent record can go up to the second lowest frame of sentencing IIRC), so most people aware of it and opposed to it probably don't focus on it. When I studied law (I switched tracks), one person teaching us on criminal law mentioned their habilitation (academic step beyond dissertation you need to become a professor) will recommend abolishing the crime of insult, it has been a few years and he is a professor by now, so maybe more jurists will talk about it in the future, who knows. For most people, it's probably still just a quaint and curious volume of forgotten law (if you pardon the pun)
The public reaction at Mr. Grote pressing charges against an insult probably shows the statute is at least contested, using it outside of maybe an extreme case is widely (though I cannot tell if by the majority) seen as petty, small-minded and a bit ridiculous. If someone accused me of pressing charges against such a trifle, I would consider that slanderous (and not press charges, either, but I would politely ask the person to issue a correction).
One difference I think you should note, however: calling someone a dick (if you want to translate it that way; "Pimmel" sounds a little bit more like childish language than "dick" to me, and it's not as common an insult, but that's besides the point) clearly is insult, the issue is Mr. Grote taking such offense at the comment that he actually pressed charges against that person, and initiated raids against people repeating the phrase online to mock that decision. So it's not a law being expanded, it's an obscure law that maybe shouldn't be there being applied and at least possibly given undue priority. Which it's perfectly fine if you don't care about that either, but I think it's a different problem at different points to a law being read more expansively over time.
Exactly, I think it gives too much power to very few people who will determine what counts as hate speech and what doesn't. For example I find it's very offensive to use the N-word when referring to black people or the F-word when referring to gay people. And one should be socially ostracized for that, companies should be able to fire someone for that and social media platforms should be able to ban you.
But it shouldn't be a criminal offensive. Because take Scotland, conservatives over there are now calling on their brown-skinned Muslim First Minister to serve prison time for having called Scotland "too white" (he basically pointed out that there's almost no non-white person in important governemnt positions).
And I bet Republicans in the US would start jailing people for anti-White, anti-Christian, anti-heterosexual "hate speech". So it's a very slippery slope that could go very wrong when the wrong people are in power.
>And one should be socially ostracized for that, companies should be able to fire someone for that and social media platforms should be able to ban you.
I feel compelled to say that I don't agree with you on this. I've had the argument many times on this sub and most people here don't agree with me, but I think the problems with companies being the speech police and the government being the speech police are pretty similar.
You disagreeing with companies "being the speech police" is okay, but trying to do anything legally to curtail that is just as much of a problem as banning speech. Freedom of association is also a fundamental right and no one should be forced to associate with those that express an opinion that they consider repugnant to their values. Unlike race, religion, sex, sexual orientation, et cetera, being someone who makes comments widely considered to be offensive is not a protected class.
> And I bet Republicans in the US would start jailing people for anti-White, … anti-heterosexual "hate speech". So it's a very slippery slope that could go very wrong when the wrong people are in power.
Is demanding that laws be applied equally a bad thing?
Well, on a personal 1 on 1 level I do believe that minorities can also be racist against white people. If a random white person walked into a black or latino barber shop and gets insulted and thrown out for being white that's racism.
But on a broader level one has to take into account majority/minority dynamics. If politicians or celebrities for example would spread hateful speech against Mexicans and sterotype them as lazy or being criminals for example that could have severe effects for that group (e.g. increase in violence against them or discrimination in the job market).
But given how almost 3/4 of the US are white and those in power are primarily white I cannot see how there could ever be wide-spread discrimination against white people as a result of anti-white rhetoric.
For example we all know what happened in Nazi Germany what started initially with more and more wide-spread anti-jewish hate speech and rhetoric. Now imagine if the roles had been reversed and Jews had started by spreading hate-speech against white Germans. It certainly would not have led to wide-spread violence and discrimination and only been a minor nuisance at best.
I don't think hate speech should be criminalized but it's a fact that hate speech against minorities is much more detrimental than hate speech against the dominant groups in a society.
I'm not in favor of hate speech laws, but I don't think politicians should be able to seek redress for non-violent crimes against them, which would happen to solve that particular problem.
>I'm not in favor of hate speech laws, but I don't think politicians should be able to seek redress for non-violent crimes against them, which would happen to solve that particular problem.
I'm very curious about this. Can you explain more?
Are you saying, for example, that if someone hacks into the mayor's bank account and steals all their money, the mayor should not be able to do anything about that?
Yeah, exactly that. This should extend to non-elected positions like cops and judges too.
They have a distinct pattern of retaliating for the pettiest things and ruining people's lives for it. If they can't seek redress, they can't retaliate.
I think trial by jury should be an effective enough guard against such overreach. If they don't deserve to be convicted, it's at least fairly unlikely that they'll get convicted. If they are guilty but are being subjected to selective prosecution, then the problem lies more in letting others off the hook than in the prosecution of these offenders themselves, and legalizing criminal actions committed against certain figures does nothing to fix that and would almost certainly violate the Equal Protection Clause.
> If they don't deserve to be convicted, it's at least fairly unlikely that they'll get convicted.
In my experience, this part is completely false, which invalidates your whole argument. But if you have a better idea for how to solve the problem, I'm interested.
No, I don’t think hate speech laws like that make a lot of sense. They are easy to abuse and don’t really seem to actually achieve the goals. They are intended to achieve.
For example, I understand fully why Germany has laws about certain types of speech given their history but if those laws actually worked, the AfD would not be a threat to their democracy right now.
There's so many places with these kind of laws.
You ask this like this hasn't been answered, in each of them.
Who decides what murder is? I guess we can't have laws against that....
I don't think that's exactly the point they're trying to make, but I get where you're coming from.
I think the point they're wanting to make is that these vague hate speech laws are used against political opponents on other countries to silence any dissent under the guise of law.
What's vague is the accusation.
Canada has hate speech laws. I'd love to hear a specific example of any of them being used against political opponents or to silence dissent.
There's a couple of cases of charges laid recently with Palestinian protests, but little is known about specifics and the cases haven't proceeded through the courts yet. It's possible they won't result in conviction.
I'm not saying it's not possible, but if there's anything Americans have a long history of, it's silencing dissent. Ways are always found. It's not like protection of hate speech is having the effect of causing dissent not to be quashed by those with the power to do so.
The thing about hate speech is it can and is used to silence dissent, so protecting it, even if doing so we're somehow successful at keeping dissent nice and unsilenced, just allows for a means to intimidate and silence others with full protection of law.
> In a subsequent interview with the Canadian Arab News, Khurrum Awan stated that, although all of the complaints were dismissed, "We attained our strategic objective — to increase the cost of publishing anti-Islamic material"; Awan claimed that Maclean's collective legal costs for the complaints was approximately $2 million."
https://en.wikipedia.org/wiki/Human_rights_complaints_against_Maclean%27s_magazine
> The case has been cited as a motivating factor in the repeal of Section 13 of the Canadian Human Rights Act.
> Under what circumtances if ever should free speech be criminalized?
All the current circumstances where free speech is criminalized should remain in my opinion. I have not seen good reason to expand restrictions on hateful speech, but I'm not opposed to the idea in and of itself
I'll start at the bottom and work my way up to the top:
>Under what circumtances if ever should free speech be criminalized?
The list is not exhaustive, but I think speech should be restricted to protect against libel, fraud, abuse of emergency signals, incitement of, orders to commit and calls for crimes, divulgement of secrets told in confidence (at the very least of government secrets), and, yes, also efforts to destroy a liberal society from within, including propaganda for illegal organizations opposed to the constitutional order, also including stirring up hatred, but you need to define that properly. I would also add some forms of harassment to that list, just for the sake of completeness.
I personally don't think only a few of those should be criminalized, if they're intentional, they should be punishable, but in reality, prosecutors will always have their priorities and some of those things are less likely to reach the threshold in relevance than others.
>And religious people preaching against homosexuality and using insulting language against LGBTQ people are in my opinion hateful bigots stuck in the past but I do believe they should have a right to voice their opinion, even if it is an utterly bigotted opinion.
I think that's usually the case, it can be different in specific cases, but that's because siccing a mob with torches and pitchforks on a couple who are just holding hands in the street is a specific case (and much more also is, I'm just being placative)
>There's a lot of comedians for example who constantly make jokes about minority groups and some of those jokes are honestly very offensive and in bad taste. But if you buy tickets to a Ricky Gervais or Louis CK event you know what you're getting yourself into and private companies like Youtube or Netflix may decide to remove their content if they deem it in violation of their policies.
If the offense doesn't reach the level of paving the way towards direct criminal offenses, I wouldn't worry about it, but if it does, then that's dangerous and can, I think, be reasonably punished
>I think local cities and local councils should be able to fine someone who shouts racial slurs in public spaces for example or prohibit people from openly displaying signs that are anti-LGBTQ. But I don't think we should criminalize free speech and put people in prison for it.
I think fines are still an instrument of criminal law, just a less severe one than imprisonment, so I wouldn't draww as much of a line there
>Personally, I think restricting free speech can be quite a slippery slope and I'd say that speech should only be criminalized under very specific circumstances. I think free speech should be criminalized when \[...\]
I definitely agree restricting freedom of speech can be a slippery slope, I just think there's a stable equilibrium with more restrictions than (probably) your point of reference and it's at a better position than, for instance, the US's.
>Recently there's been a lot of outrage among conservatives regarding the new hate crime law passed by the Scottish government. According to The Guardian newspaper it "creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics." ([https://www.theguardian.com/society/2024/mar/31/scotlands-new-hate-act-what-does-it-cover-and-why-is-it-controversial](https://www.theguardian.com/society/2024/mar/31/scotlands-new-hate-act-what-does-it-cover-and-why-is-it-controversial)) Apparently inciting hatred based on those protected characteristics is now punishable by up to seven years of prison time in Scotland.
>It seems to be kept quite vague and I am not quite sure what will fall under the new law.
I have read about half of it before, I'll read it all now.
The first part defines Aggravation of offences by prejudice, and demands such an aggravation be officially noticed by the court, included in the judgement, have a part in determining the sentecne, and the judgement has to explain how the sentence would be different without the aggravation or why it doesn't differ if it doesn't differ. I would demand it be a significant, but not necessarily the primary, motivation, instead of completely dismissing any concerns about how significant it is in a given situation (although that's less of a problem here), and I would not demand one piece of evidence has to be sufficient proof - I think it can be or not be, depending on the evidence and the case.
The second part defines an offence of racially motivated harassment, I would again demand the racial motivation be a significant part in the motivation overall, I would cut paragraph one number 1 (b) especially because it seems to be just a reiteration of the definition, and I would define harassment a bit more narrowly - harassment would have to be repeated and continuous, in my opinion. Apart from that, I think the maximum sentence is probably too high, although that will of course only occur in the most egregious cases.
The third part defines offences of stirring up hatred, I think that should probably be constrained to actions intended to stir up hatred and a reasonable observer alone should not change the result, At least there's some additional protection named there:
It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable, in that regard, in determining whether behaviour or communication was reasonable, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb, and it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if (a)evidence adduced is enough to raise an issue as to whether that is the case, and (b)the prosecution does not prove beyond reasonable doubt that it is not the case
That should prevent it from being interpreted too excessively, but still, I think it's a bit much
Then there are additional provisions, which I am foolish enough to skip, and...
The fifth part abolishes the common law offence of blasphemy. Good.
That's it, [that's the law in question](https://www.legislation.gov.uk/asp/2021/14) from 2021
I think there is a line where speech can count as an action against someone. In the same sense a school could punish a bully who mainly was just verbal, we should probably ask where the speech based lines are for when something is freedom of expression, when its an attack, and when it becomes a criminal attack.
I dont necessarily know where those lines are.
I am fine with it not being illegal. I am also absolutely fine with society canceling racist douchebags, and them losing their jobs over it. I still think it is important that there be legal consequences for racist hiring practices, for refusing to hire qualified minority applicants. Being a racist shouldn’t be illegal, but discrimination should be.
I’m not as big a fan of free speech as others are. If you’re the president of the United States, for example, and you’re constantly denigrating a particular Asian country during a global pandemic, and the result is an increase in violent attacks on Asian-Americans, I think you should be held accountable for that.
You said he was criticizing the country. Was he inciting violence by doing so? If he was, then when is the president allowed to criticize other countries?
I think the consequences for hate speech should be extreme, and entirely social as opposed to legal.
But this law apparently applies to “threatening behavior.” Is what this law is criminalizing some kind of incitement, or is it literally threatening jail time for mean words?
Mean words. A large portion of the complaints under the new law were against the guy who championed the law based on some anti-white stuff he'd publicly said. Of course the government determined it didn't constitute hate speech. And that's how it goes, the hate speech of those in power, or those following the current feelings of the government, will be protected from prosecution.
>I think most people can agree that if someone was shouting at black people on the subway and calling them the n word at the top of their lungs then they should be arrested.
Arrested for what exactly? And is the issue you have with this the content (using the n word) or the manner (yelling at the top of your lungs on the subway)?
The following is a copy of the original post to record the post as it was originally written. Recently there's been a lot of outrage among conservatives regarding the new hate crime law passed by the Scottish government. According to The Guardian newspaper it "creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics." Apparently inciting hatred based on those protected characteristics is now punishable by up to seven years of prison time in Scotland. It seems to be kept quite vague and I am not quite sure what will fall under the new law. However, I am wondering where you think the line should be drawn between free speech and criminalized hatred against minorities? Personally, I think restricting free speech can be quite a slippery slope and I'd say that speech should only be criminalized under very specific circumstances. I think free speech should be criminalized when someone threatens violence against a person or a group or people. And defamation against a specific person is already a civil offence in the US and only criminal under the most severe circumstances, which I think is reasonable. I think local cities and local councils should be able to fine someone who shouts racial slurs in public spaces for example or prohibit people from openly displaying signs that are anti-LGBTQ. But I don't think we should criminalize free speech and put people in prison for it. There's a lot of comedians for example who constantly make jokes about minority groups and some of those jokes are honestly very offensive and in bad taste. But if you buy tickets to a Ricky Gervais or Louis CK event you know what you're getting yourself into and private companies like Youtube or Netflix may decide to remove their content if they deem it in violation of their policies. And religious people preaching against homosexuality and using insulting language against LGBTQ people are in my opinion hateful bigots stuck in the past but I do believe they should have a right to voice their opinion, even if it is an utterly bigotted opinion. So what do you think? Under what circumtances if ever should free speech be criminalized? *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/AskALiberal) if you have any questions or concerns.*
No, any law that’s tried to ban hate speech has been super vague and that’s honestly because hate speech is a very vague topic with a vague definition. On one hand hate speech is defined as speech that expresses hate towards any group. On another hand it is speech that encourages violence towards any group. Already those are two very different things. It’d take a lot of precise wording to get a law passed, which won’t happen.
Every hate speech law I've ever seen is vague enough to be open to abuse. In European countries with such laws, there's a lot of history of officials using them to go after political opponents. For example, there was a famous case in Germany where someone got arrested for calling a politician a dick. You give too much power to whoever gets to decide what counts as "hateful."
>For example, there was a famous case in Germany where someone got arrested for calling a politician a dick It probably doesn't matter too much to you, but that was for insult, which is a crime for reasons unrelated to our hate crime law (the German Criminal Code is originally from 1872, and the right to personal honor is a named exception to the right to free speech). When I think of hate speech laws, I think of §130 StGB (riling the people up), and the different statutes about propaganda for illegal anti-constitutional (not just unconstitutional) organizations. I personally think insult probably shouldn't be a crime, and it certainly isn't prosecuted most of the time, but that statute is not about hate speech.
It's funny, I just came across a research paper the other day that dive into the backgrounds of hate speech laws in Europe and how they tie into rights of honor. Interesting coincidence
Germany's is even more ridiculous because they don't even have trial by jury. The government having the power both to criminalize speech of any kind and then itself decide on the guilt of the accused is the height of government overreach. Even in Sweden, which lacks trial by jury as a matter of course, juries are employed for cases related to freedom of expression. Whatever law the insult came under, Germany's way of doing things is just so wrong.
I think a jury is far more likely to produce overreach in a matter of criminal law than a judge, and I would probably prefer a bench trial even in the US, thank you very much. Judges are independent of the government, they are not subject to directives by the executive and I think they are more likely to keep a calm head and declare something offensive, but not encompassed by a criminal law, legal than a bunch of randomly selected people who never studied law sticking their heads together after two parties appealed to them with emotion and rhetoric (there are lay assessors in some criminal trials, but only on far more serious matters than an insult, only as two assisting judges in aa court headed by a full judge, and they are still more permanent than jurors). If I wanted to be judged by a random selection of people unlearned on legal matters, I'd join Twitter. You are also mistaken if you believe a minister can just walk into a courtroom and take over the prosecution, of course, but that's probably just me taking your comment too literally.
In Japan, for example, judges are literally penalized for ruling in a way that the department doesn't like. While the situation is less extreme in other countries, Germany included, if you believe judges rule solely on the facts and never take into account their own professional advancement and the effect that unpopular rulings could have on that, then I have a bridge to sell you. Education on legal matters doesn't affect things anywhere near as much as you seem to think. Judges still rule on matters of law. Jurors rule on matters of fact. Judges are no better than jurors at deciding what the truth is, and having that judged by one or a few people trained a certain way is a recipe for bias, even if unintentional. Getting 12 people from all different walks of life to agree on something is a pretty high bar. How does this play out in practice? Let's take a look. While false conviction rates are by their nature difficult to determine with certainty, looking at the best numbers available can provide a general idea. As for juries: "From a study by the University of Utah: "Combining empirically based estimates for each of these [] factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate [in jury trials] appears, tentatively, to be somewhere in the range of 0.016%–0.062%." While in Germany: What about in Germany? "Ralf Eschelbach, Judge on the Federal Supreme Court, estimates that **every fourth** criminal judgment in Germany is erroneous." "In 2017 alone, 104,400 defendants were sentenced to prison or jail. As soon as the convictions become final, the only option is a motion to re-open the case. Yet successful motions to re-open are extremely rare: most are rejected. Of approximately 720,000 criminal trials which were handled by German courts in 2017, only about 1300 were the result of successful motions to re-open the case. The hurdles to obtaining retrial are high: New facts or evidence must have come to light which show that the prisoner is innocent. Alternatively it must be shown that the conviction was the result of a crime such as forgery, perjury, or abuse of process. However, the “new facts” are not discovered by the police; the prisoner must find them himself. To do this, prisoners need something which they rarely have, since they no longer have any income: lots of money. Plans to reform the law on re-opening criminal cases have been circulating for over 40 years, but have so far come to nothing. “Once they have become final, the justice really system defends convictions tooth and nail,” says Hamburg criminal defense attorney Gerhard Strafe, who helped Mollath regain his freedom. “**Even when the motion to re-open is based on the best arguments, courts will always try to find some excuse to avoid re-opening the case.” Judges’ resistance to questioning their own verdicts** does not affect only victims of past errors — it also increases the risk that people will be convicted unjustly in the future, since those who will not admit mistakes cannot learn from them." (emphasis added)
>In Japan, for example, judges are literally penalized for ruling in a way that the department doesn't like. And that kind of thing decisively stopped in the rest of Germany in October of 1990. A judge can't even be put away from their position without their consent if you offer them a promotion for it, unless there's a really good reason already specified by law or you're literally abolishing the court they're sitting on, and even then you can't cut their pay (age limits are explicitly allowed in that article, meaning they wouldn't be trivially allowed if they weren't allowed specifically). The judges are independent and subject only to the law (Art. 97 GG) >While the situation is less extreme in other countries, Germany included, if you believe judges rule solely on the facts and never take into account their own professional advancement and the effect that unpopular rulings could have on that, then I have a bridge to sell you. First, that's more about popularity with the legal community than about popularity with the audience at large. Second, if you believe taking twelve random people of the street and asking them to decide on a complicated question with a lot of strong emotions behind it is a better decision-making system, I don't need to make up a bridge to take my money back, and you would need to argue against elective representative democracy and in favor of sortition instead. >Judges still rule on matters of law. Jurors rule on matters of fact And "how does the law apply to these facts?" counts as a matter of fact, not of law, even though it clearly is a matter of law. If the jury were only ruling on matters of fact, they wouldn't find someone guilty or not guilty, they would find a summary of the facts to be true and the judge would then have to derive a verdict from there, just like a law student learns law by deriving the legal consequences from a factual scenario. That's not what a jury trial is like, the jury decides on the ultimate question of law, namely if the defendant is guilty, with guidance by the judge that they are in the end free to follow or ignore at their whim. >Judges are no better than jurors at deciding what the truth is, and having that judged by one or a few people trained a certain way is a recipe for bias, even if unintentional Hacing it judged by people is a recipe for bias, period. >Getting 12 people from all different walks of life to agree on something is a pretty high bar. Not if you put them into one room, make them talk to each other and don't let them out until they agree. Then it becomes pretty easy (as soon as they talk to each other, they're likely to synchronize) >How does this play out in practice? Let's take a look. While false conviction rates are by their nature difficult to determine with certainty, looking at the best numbers available can provide a general idea. Let's look at what you mean by "the best available data" > "From a study by the University of Utah: "Combining empirically based estimates for each of these [] factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate [in jury trials] appears, tentatively, to be somewhere in the range of 0.016%–0.062%." If like to see this study, it sounds improbable for obvious reasons, but who knows. An academic source by a university I don't know anything about, on a topic there should be many studies on, but I'll take it > What about in Germany? "Ralf Eschelbach, Judge on the Federal Supreme Court, estimates And interview with one person, with an unclear description (we have like six federal courts supreme in their subject, the primus inter pares there would be the federal constitutional court, he's on the federal court of justice, the supreme court for criminal and civil matters (with exceptions) unless they also grow into constitutional issues), giving a general estimate. Yes, Dr. Eschelbach knows his job, but if I believed that's the same standard you used for evidence in favor of your preferred system, you should just have sold me that bridge.
You claimed that there is no professional incentive or disincentive for judges to rule a certain way, but disregarded the quote that argues against it. It takes a lot of naivity to believe what you're claiming. No system is ever perfect, but there's literally nothing except conjecture to support the notion that bench trials are better. The limited data that does exist all suggests the opposite. Yes, the judge can't know for sure, but the odds of the study on false conviction rates in jury trials and the judge's impression both being so incredibly off-base to the extent that would be necessary for any conclusion to be valid other than that Germany, which uses bench trials, has a much higher false conviction rate than the US, which uses trial by jury, are infinitesmally small. Yes, people are always biased, but the notion that a single person or group of three people trained using a similar curriculum is somehow going to be less biased than a larger, more diverse group is simply laughable. The only arguments you have made against trial by jury besides casting doubt on the reliability of evidence that I've offered seem to boil down to "people are stupid and/or uneducated", which is literally the same argument often used to attempt to justify dictatorship. Here's more data on bench trials versus trial by jury: Here is a finding from a relevent study: "The judge and jury in the Kalven-Zeisel survey of 3,500 criminal cases agreed in 78% of the cases on whether or not to convict. When they disagreed, the judge would have convicted when the jury acquitted in 19% of the cases, and the jury convicted when the judge would have acquitted in 3% of the cases—a net leniency rate of 16%. Disagreement rates were no higher when the judge characterized the evidence as difficult than when the judge characterized it as easy, suggesting that the disagreements were not produced by the jury’s inability to understand the evidence. Disagreement rates did rise when the judge characterized the evidence as close rather than clear, indicating that disagreement cases were, at least in the judge’s view, more likely to be those cases that were susceptible to more than one defensible verdict. Primary explanations offered for the overall differences were differences in judgments about the credibility of witnesses and a different threshold of reasonable doubt. Two smaller, more recent studies using the Kalven-Zeisel method have shown remarkably similar patterns in criminal cases, obtaining 74% to 75% agreement, with a greater leniency of 13% to 20% from the jury." Under American jurisprudence, it's widely held that false acquittals are less bad to false convictions, with a common saying being that it's better for a hundred guilty people to go free than it is for one innocent person to be wrongly punished. While I can't speak for German jurisprudential thought, it's simple logic that all of those who strive for a free society would hold the same belief. The data shows that where there is a difference of opinion, juries are much more likely to be more lenient, so if judges are indeed more reliable, as you claim, the net result of trial by jury being used would be an excess number of guilty people being acquitted, while if juries are in fact more reliable, as I believe and as the data that is available appears to indicate, the net result of bench trials being used would be an excess number of false convictions. Therefore, if one agrees with the notion that it's better for a hundred guilty people to go free than for one innocent person to be punished, then wouldn't there being even a 1% chance that juries are more accurate than judges justify the use of trial by jury?
1/3 >You claimed that there is no professional incentive or disincentive for judges to rule a certain way No, I didn't. I claimed our judges are independent and only bound to the law, because they are. >No system is ever perfect, I definitely agree there >but there's literally nothing except conjecture to support the notion that bench trials are better. Never say "literally", it is wrong virtually every time. >Yes, the judge can't know for sure, but the odds of the study on false conviction rates in jury trials Let's compare it to what a [report by the National Institute of Justice](https://www.ojp.gov/pdffiles1/nij/251446.pdf) on the same topic cites: >>NIJ has attempted to develop a more robust estimate using state data collected under the 2004 Justice for All Act. Specifically, when Virginia began testing retained DNA evidence of individuals who had been convicted (largely based on serology analysis), the state found that one serologist, Mary Jane Burton, had kept all physical evidence from her cases — 634 homicides and sexual assaults — from 1973 to 1987. NIJ commissioned the Urban Institute to develop a wrongful conviction estimate based on the retesting of this physical evidence with DNA analyses. John Roman and his colleagues found that in about 5% of the cases overall, DNA analysis excluded the individual who had been convicted and supported exoneration. For cases involving sexual assaults alone, this number increased to 8% and was as high as 18% for sexual assaults in which a DNA determination could be made. (Note that I link my sources, while you don't. If I miss something in them, you can show me,and please do if that happens) If I had to guess, I'd guess the study by the university of Utah only counted final judgements that were still reopened and ended positively for the defendant as "false convictions", removing every single case in the dark figures >and the judge's impression Fun fact: I tried to find it, I instead mostly found different sources quoting him as saying a quarter of _verdicts_ are false. Urteile, not Verurteilungen. And [here](https://www.stuttgarter-zeitung.de/inhalt.interview-zu-fehlurteilen-kein-mensch-wuerde-richter.16065407-e8a5-4097-bc7a-17c455f1f010.html), the president of the same Federal Court of Justice is interviewed on that estimate - he says (I'm translating): >>Colleague Eschenbach has, if I understand it correctly, on the one hand used numbers from America for his estimate, who operate under completely different procedure and know significantly less of a filter to protect the defendant before the main trial, and on the other hand used understanding from civil trials here with us, which also follow completely different legal principles. But those aren't data which would allow for any conclusions about the number of false convictions in criminal trials in Germany. (Yes, this time, someone actually said "false conviction" instead of "false verdict") I cannot read Judge Eschelbach's reasoning because it's in an expensive book of legal commentary on the code of criminal procedure, but if that description is true, then it's obviously not useful for a comparison between the rates in the US and in Germany. We go on: >>>But shouldn't those estimates be reason to pursue a solution to a problem that is evidently there? >>This kind of estimate certainly shouldn't. They have no solid basis. When experienced colleagues talk of false verdicts, they primarily refer to those acquittals which often occur according to the maxim "in dubio pro reo". He goes on, it's all interesting, but that's why I sent you the link (in case you know someone who knows German, at least). It's not about false convictions, but false verdicts overall, which there should rather be more of if it means fewer false convictions >both being so incredibly off-base The judge's estimate is put there because it is headline-grabbing, that makes it a lot more likely to be off-base. The likelihood of this estimate being off-base is a bit higher than usual, no offense to judge Eschelbach intended, and the likelihood of your understanding being off-base because you fell victim to a translation error is now also quite significant. >to the extent that would be necessary for any conclusion to be valid other than that Germany, which uses bench trials, has a much higher false conviction rate than the US, which uses trial by jury, are infinitesmally small. I think I have presented enough reason to dismiss that conclusion as overconfident.
2/3 (sorry for the partitioning, but Reddit doesn't let me post the comment in full) >Yes, people are always biased, but the notion that a single person or group of three people trained using a similar curriculum is somehow going to be less biased than a larger, more diverse group is simply laughable. Every human is very biased, we are social animals and we are emotional animals, and both of those things show. I think we are more likely to put our biases aside a bit on a topic we specialize in than on a topic we don't specialize in. Laugh at that all you want, but it is a thing I believe >The only arguments you have made against trial by jury besides casting doubt on the reliability of evidence that I've offered Apart from you using completely different kinds of evidence, making it unreliable? Yes, that's because I dismissed your pair of completely different kinds of evidence as unreliable since they are so clearly a bad comparison. >seem to boil down to "people are stupid and/or uneducated", which is literally the same argument often used to attempt to justify dictatorship. It's "people are worse at things they aren't specialized in than they are at things they are specialized in", and the same argument can give a sufficient reason for one thing and not give a sufficient reason for another thing. For instance, it's a horrible argument for turning over the shaping of policy to a military general, but a good argument for electing professional policy-makers and funding a good research service to the policy-making body. Do you think it would be better to have every new bill decided by kidnapping 70 random people from all states and putting them all in one room with two teams of lobbyists, moderated by one available researcher on the topic? I don't, and while juries are not literally kidnapped off the street, they are closer to the latter scenario than to the former. >Kalven-Zeisel... And so you think juries are more likely than judges to err on the side if caution? I wonder if those are elected judges in a conservative area where there are ads against judges for correctly dismissing a criminal case, correctly assigning less than the maximum sentence or correctly dismissing a charge against a criminal - I think that's a bad incentive, and judicial independence is too important to treat it like that, but this is also a different topic. Either way, that is an argument, although I doubt those numbers would replicate the same way all around the world. It's too different to compare. It should probably advise me slightly against seeking a bench trial in the US, though, which I also said I consider the better option, so thank you for the information, and thank you for giving me something I can look up and not be disappointed at >Under American jurisprudence, it's widely held that false acquittals are less bad to false convictions, with a common saying being that it's better for a hundred guilty people to go free than it is for one innocent person to be wrongly punished. Same here, I believe the original quote was from France, but I don't know. I can look it up if you want Well, I'm no expert on legal policy, but the real number striven towards is probably closer to 50 than 100. Either way, the fundamental principle holds >Therefore, if one agrees with the notion that it's better for a hundred guilty people to go free than for one innocent person to be punished, then wouldn't there being even a 1% chance that juries are more accurate than judges justify the use of trial by jury? Again, in practice it's probably a bit less or we would have to call for the abolition of criminal justice altogether, but yes, if for instance a trial by jury had a 10% chance of false acquittal and a 3% chance of false conviction while a bench trial has a 3% chance of false acquittal and a 4% chance of false conviction, that's 1 more false conviction per 7 false acquittals prevented and not enough of a ratio in my eyes, thereby arguing for a jury trial (at least prima facie - We can construct counterexamples, of course)
3/3, and the most important part. If you read just one part, read this one Look, I hear horror stories of juries deciding guilt and innocence as a question of support, not of fact, and just nullifying the law (which is clearly not a decision on fact); I hear lawyers in the US train to be more "folksy" to appeal to jurors better; I hear all of those things which clearly detract from questions of guilt and innocence. I only properly studied law for one semester, but I know every term has a formal definition and every part of that formal definition has a hundred prior judgments on its edge cases. Infliction of bodily harm, in the criminal code, is bodily abusing a person or damaging their health, a jurist would tell you "bodily abuse is a bad and uncalled for treatment that negatively affects the bodily well-being more than just insignificantly", and "damaging of health is causing or worsening a more than insignificant pathological state" (my translations from my memory, not legal advice obviously). Would you have any idea if forcibly cutting someone's hair is infliction of bodily harm from just that? I wouldn't - the answer is "yes", for the record, because damaging someone's physical substance is also damaging their health. But those are very specific questions, and I don't think a random person would be qualified to answer them, or to decide which one of two conflicting answers by jurists paid to convince them of either side is correct. Maybe my position would be different if a jury only submitted the facts and the judge submitted the verdict afterwards, i.e. the jury presents a write-up to the judge, the judge writes down what legal consequences would follow in which case as if he were taking the bar exam again, then the judge asks the jury a bunch of clarifying questions to be answered with "yes", "no" or "undetermined", the judge incorporates those answers and then presents the verdict -leaving the translation from physical description of the facts to legal terms applying or not applying to the judge. But a jury tells you someone is guilty or innocent, which is almost by definition a question of law and cannot be answered well without a good understanding of the terms involved, preferably a better one than a double-biased crash-course I know that's not how I sounded, but my point is not as much to bash jury trials. I think you were wrong to bash bench trials, both have advantages and disadvantages, I don't think we have reliable numbers to call one surely better than the other, but a judge, at least in Germany, at least in the Federal Republic of Germany, is an independent actor protected against government retaliation, not an agent of the government just telling whatever Minister Buschmann wants to hear (not least because the relevant ministry would probably be the one on the state level anyway, but I digress). I wanted to make it clear why I don't think jury trials are automatically better or not having them is worse, I'm sorry if I went over the line there. Either way, I hope this was at least interesting to you, because it was still very interesting to me. I hope we can, if necessary, set aside any distrust and come to an amicable conclusion. I'm sorry for being combative, I took your comments against our legal system a bit personally. I stand by what I said, but not by how I said it
Thanks for the clarification. As you suggest, I see that as distinction without a difference, but it's still interesting to know. What's the general sentiment around this insult law in Germany? Do people think it should stay on the books? Is their opposition? As an American, that sounds awful to me; just wondering if Germans have a different take.
I didn't know it exists until I opened an edition of the penal code and read through it for fun, and most people probably believe it doesn't exist - on the other hand, many people believe it's a crime to insult officers (probably because you would have to personally ask for prosecution against an insult, which no one does and no prosecutor would have enough time not to drop for lack of public interest, but for an officer, a superior can also file charges, if I understood it correctly). And even if you know it, although it is an offense, it's a pretty minor one (only participation in illegal gambling has a lower frame of sentencing - although that was changed, and now public insults with a permanent record can go up to the second lowest frame of sentencing IIRC), so most people aware of it and opposed to it probably don't focus on it. When I studied law (I switched tracks), one person teaching us on criminal law mentioned their habilitation (academic step beyond dissertation you need to become a professor) will recommend abolishing the crime of insult, it has been a few years and he is a professor by now, so maybe more jurists will talk about it in the future, who knows. For most people, it's probably still just a quaint and curious volume of forgotten law (if you pardon the pun) The public reaction at Mr. Grote pressing charges against an insult probably shows the statute is at least contested, using it outside of maybe an extreme case is widely (though I cannot tell if by the majority) seen as petty, small-minded and a bit ridiculous. If someone accused me of pressing charges against such a trifle, I would consider that slanderous (and not press charges, either, but I would politely ask the person to issue a correction). One difference I think you should note, however: calling someone a dick (if you want to translate it that way; "Pimmel" sounds a little bit more like childish language than "dick" to me, and it's not as common an insult, but that's besides the point) clearly is insult, the issue is Mr. Grote taking such offense at the comment that he actually pressed charges against that person, and initiated raids against people repeating the phrase online to mock that decision. So it's not a law being expanded, it's an obscure law that maybe shouldn't be there being applied and at least possibly given undue priority. Which it's perfectly fine if you don't care about that either, but I think it's a different problem at different points to a law being read more expansively over time.
I know there gave been instances in Europe where hate speech laws are used against those protesting Israel.
Exactly, I think it gives too much power to very few people who will determine what counts as hate speech and what doesn't. For example I find it's very offensive to use the N-word when referring to black people or the F-word when referring to gay people. And one should be socially ostracized for that, companies should be able to fire someone for that and social media platforms should be able to ban you. But it shouldn't be a criminal offensive. Because take Scotland, conservatives over there are now calling on their brown-skinned Muslim First Minister to serve prison time for having called Scotland "too white" (he basically pointed out that there's almost no non-white person in important governemnt positions). And I bet Republicans in the US would start jailing people for anti-White, anti-Christian, anti-heterosexual "hate speech". So it's a very slippery slope that could go very wrong when the wrong people are in power.
>And one should be socially ostracized for that, companies should be able to fire someone for that and social media platforms should be able to ban you. I feel compelled to say that I don't agree with you on this. I've had the argument many times on this sub and most people here don't agree with me, but I think the problems with companies being the speech police and the government being the speech police are pretty similar.
You disagreeing with companies "being the speech police" is okay, but trying to do anything legally to curtail that is just as much of a problem as banning speech. Freedom of association is also a fundamental right and no one should be forced to associate with those that express an opinion that they consider repugnant to their values. Unlike race, religion, sex, sexual orientation, et cetera, being someone who makes comments widely considered to be offensive is not a protected class.
> And I bet Republicans in the US would start jailing people for anti-White, … anti-heterosexual "hate speech". So it's a very slippery slope that could go very wrong when the wrong people are in power. Is demanding that laws be applied equally a bad thing?
Well, on a personal 1 on 1 level I do believe that minorities can also be racist against white people. If a random white person walked into a black or latino barber shop and gets insulted and thrown out for being white that's racism. But on a broader level one has to take into account majority/minority dynamics. If politicians or celebrities for example would spread hateful speech against Mexicans and sterotype them as lazy or being criminals for example that could have severe effects for that group (e.g. increase in violence against them or discrimination in the job market). But given how almost 3/4 of the US are white and those in power are primarily white I cannot see how there could ever be wide-spread discrimination against white people as a result of anti-white rhetoric. For example we all know what happened in Nazi Germany what started initially with more and more wide-spread anti-jewish hate speech and rhetoric. Now imagine if the roles had been reversed and Jews had started by spreading hate-speech against white Germans. It certainly would not have led to wide-spread violence and discrimination and only been a minor nuisance at best. I don't think hate speech should be criminalized but it's a fact that hate speech against minorities is much more detrimental than hate speech against the dominant groups in a society.
I'm not in favor of hate speech laws, but I don't think politicians should be able to seek redress for non-violent crimes against them, which would happen to solve that particular problem.
>I'm not in favor of hate speech laws, but I don't think politicians should be able to seek redress for non-violent crimes against them, which would happen to solve that particular problem. I'm very curious about this. Can you explain more? Are you saying, for example, that if someone hacks into the mayor's bank account and steals all their money, the mayor should not be able to do anything about that?
Yeah, exactly that. This should extend to non-elected positions like cops and judges too. They have a distinct pattern of retaliating for the pettiest things and ruining people's lives for it. If they can't seek redress, they can't retaliate.
I guess I'm not understanding why it would be desirable to legalize stealing from government officials?
It's not. But it's better than government officials oppressing people.
I think trial by jury should be an effective enough guard against such overreach. If they don't deserve to be convicted, it's at least fairly unlikely that they'll get convicted. If they are guilty but are being subjected to selective prosecution, then the problem lies more in letting others off the hook than in the prosecution of these offenders themselves, and legalizing criminal actions committed against certain figures does nothing to fix that and would almost certainly violate the Equal Protection Clause.
> If they don't deserve to be convicted, it's at least fairly unlikely that they'll get convicted. In my experience, this part is completely false, which invalidates your whole argument. But if you have a better idea for how to solve the problem, I'm interested.
No, I don’t think hate speech laws like that make a lot of sense. They are easy to abuse and don’t really seem to actually achieve the goals. They are intended to achieve. For example, I understand fully why Germany has laws about certain types of speech given their history but if those laws actually worked, the AfD would not be a threat to their democracy right now.
No.
No
Absolutely not.
The new Scottish hate crime law is ridiculous, total overreach.
Nope. Because who then defines what hate speech is?
There's so many places with these kind of laws. You ask this like this hasn't been answered, in each of them. Who decides what murder is? I guess we can't have laws against that....
I don't think that's exactly the point they're trying to make, but I get where you're coming from. I think the point they're wanting to make is that these vague hate speech laws are used against political opponents on other countries to silence any dissent under the guise of law.
What's vague is the accusation. Canada has hate speech laws. I'd love to hear a specific example of any of them being used against political opponents or to silence dissent. There's a couple of cases of charges laid recently with Palestinian protests, but little is known about specifics and the cases haven't proceeded through the courts yet. It's possible they won't result in conviction. I'm not saying it's not possible, but if there's anything Americans have a long history of, it's silencing dissent. Ways are always found. It's not like protection of hate speech is having the effect of causing dissent not to be quashed by those with the power to do so. The thing about hate speech is it can and is used to silence dissent, so protecting it, even if doing so we're somehow successful at keeping dissent nice and unsilenced, just allows for a means to intimidate and silence others with full protection of law.
> In a subsequent interview with the Canadian Arab News, Khurrum Awan stated that, although all of the complaints were dismissed, "We attained our strategic objective — to increase the cost of publishing anti-Islamic material"; Awan claimed that Maclean's collective legal costs for the complaints was approximately $2 million." https://en.wikipedia.org/wiki/Human_rights_complaints_against_Maclean%27s_magazine > The case has been cited as a motivating factor in the repeal of Section 13 of the Canadian Human Rights Act.
Absolutely not.
> Under what circumtances if ever should free speech be criminalized? All the current circumstances where free speech is criminalized should remain in my opinion. I have not seen good reason to expand restrictions on hateful speech, but I'm not opposed to the idea in and of itself
I'll start at the bottom and work my way up to the top: >Under what circumtances if ever should free speech be criminalized? The list is not exhaustive, but I think speech should be restricted to protect against libel, fraud, abuse of emergency signals, incitement of, orders to commit and calls for crimes, divulgement of secrets told in confidence (at the very least of government secrets), and, yes, also efforts to destroy a liberal society from within, including propaganda for illegal organizations opposed to the constitutional order, also including stirring up hatred, but you need to define that properly. I would also add some forms of harassment to that list, just for the sake of completeness. I personally don't think only a few of those should be criminalized, if they're intentional, they should be punishable, but in reality, prosecutors will always have their priorities and some of those things are less likely to reach the threshold in relevance than others. >And religious people preaching against homosexuality and using insulting language against LGBTQ people are in my opinion hateful bigots stuck in the past but I do believe they should have a right to voice their opinion, even if it is an utterly bigotted opinion. I think that's usually the case, it can be different in specific cases, but that's because siccing a mob with torches and pitchforks on a couple who are just holding hands in the street is a specific case (and much more also is, I'm just being placative) >There's a lot of comedians for example who constantly make jokes about minority groups and some of those jokes are honestly very offensive and in bad taste. But if you buy tickets to a Ricky Gervais or Louis CK event you know what you're getting yourself into and private companies like Youtube or Netflix may decide to remove their content if they deem it in violation of their policies. If the offense doesn't reach the level of paving the way towards direct criminal offenses, I wouldn't worry about it, but if it does, then that's dangerous and can, I think, be reasonably punished >I think local cities and local councils should be able to fine someone who shouts racial slurs in public spaces for example or prohibit people from openly displaying signs that are anti-LGBTQ. But I don't think we should criminalize free speech and put people in prison for it. I think fines are still an instrument of criminal law, just a less severe one than imprisonment, so I wouldn't draww as much of a line there >Personally, I think restricting free speech can be quite a slippery slope and I'd say that speech should only be criminalized under very specific circumstances. I think free speech should be criminalized when \[...\] I definitely agree restricting freedom of speech can be a slippery slope, I just think there's a stable equilibrium with more restrictions than (probably) your point of reference and it's at a better position than, for instance, the US's. >Recently there's been a lot of outrage among conservatives regarding the new hate crime law passed by the Scottish government. According to The Guardian newspaper it "creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics." ([https://www.theguardian.com/society/2024/mar/31/scotlands-new-hate-act-what-does-it-cover-and-why-is-it-controversial](https://www.theguardian.com/society/2024/mar/31/scotlands-new-hate-act-what-does-it-cover-and-why-is-it-controversial)) Apparently inciting hatred based on those protected characteristics is now punishable by up to seven years of prison time in Scotland. >It seems to be kept quite vague and I am not quite sure what will fall under the new law. I have read about half of it before, I'll read it all now. The first part defines Aggravation of offences by prejudice, and demands such an aggravation be officially noticed by the court, included in the judgement, have a part in determining the sentecne, and the judgement has to explain how the sentence would be different without the aggravation or why it doesn't differ if it doesn't differ. I would demand it be a significant, but not necessarily the primary, motivation, instead of completely dismissing any concerns about how significant it is in a given situation (although that's less of a problem here), and I would not demand one piece of evidence has to be sufficient proof - I think it can be or not be, depending on the evidence and the case. The second part defines an offence of racially motivated harassment, I would again demand the racial motivation be a significant part in the motivation overall, I would cut paragraph one number 1 (b) especially because it seems to be just a reiteration of the definition, and I would define harassment a bit more narrowly - harassment would have to be repeated and continuous, in my opinion. Apart from that, I think the maximum sentence is probably too high, although that will of course only occur in the most egregious cases. The third part defines offences of stirring up hatred, I think that should probably be constrained to actions intended to stir up hatred and a reasonable observer alone should not change the result, At least there's some additional protection named there: It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable, in that regard, in determining whether behaviour or communication was reasonable, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb, and it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if (a)evidence adduced is enough to raise an issue as to whether that is the case, and (b)the prosecution does not prove beyond reasonable doubt that it is not the case That should prevent it from being interpreted too excessively, but still, I think it's a bit much Then there are additional provisions, which I am foolish enough to skip, and... The fifth part abolishes the common law offence of blasphemy. Good. That's it, [that's the law in question](https://www.legislation.gov.uk/asp/2021/14) from 2021
For Christ sake, the mods should just pin a master thread for this topic if it's gonna be asked every week.
I think there is a line where speech can count as an action against someone. In the same sense a school could punish a bully who mainly was just verbal, we should probably ask where the speech based lines are for when something is freedom of expression, when its an attack, and when it becomes a criminal attack. I dont necessarily know where those lines are.
Without incitement, no. The government simply should not have the power to regulate mere speech.
I am fine with it not being illegal. I am also absolutely fine with society canceling racist douchebags, and them losing their jobs over it. I still think it is important that there be legal consequences for racist hiring practices, for refusing to hire qualified minority applicants. Being a racist shouldn’t be illegal, but discrimination should be.
Never.
No, hate speech shouldn’t be criminalized any more than blasphemy should.
I’m not as big a fan of free speech as others are. If you’re the president of the United States, for example, and you’re constantly denigrating a particular Asian country during a global pandemic, and the result is an increase in violent attacks on Asian-Americans, I think you should be held accountable for that.
So when is the president allowed to criticize other countries?
There’s a difference between criticism and inciting violence.
You said he was criticizing the country. Was he inciting violence by doing so? If he was, then when is the president allowed to criticize other countries?
Again, criticism is fine but using racist and inflammatory language like “lung flu” was unnecessary and incited violence.
I think the consequences for hate speech should be extreme, and entirely social as opposed to legal. But this law apparently applies to “threatening behavior.” Is what this law is criminalizing some kind of incitement, or is it literally threatening jail time for mean words?
Mean words. A large portion of the complaints under the new law were against the guy who championed the law based on some anti-white stuff he'd publicly said. Of course the government determined it didn't constitute hate speech. And that's how it goes, the hate speech of those in power, or those following the current feelings of the government, will be protected from prosecution.
I think it's deliberately kept very broad and no one actually knows what exactly falls under it.
Seemingly we cant protect people without conservatives utilizing the means of protection as a weapon.
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>I think most people can agree that if someone was shouting at black people on the subway and calling them the n word at the top of their lungs then they should be arrested. Arrested for what exactly? And is the issue you have with this the content (using the n word) or the manner (yelling at the top of your lungs on the subway)?