Which one of the three legal systems handles the limitation of free speech better?
The model that handles the limitation of free speech best would be the German legal system. This is based on Germany’s provisions against genocide, hate speech, and the expansion of false news. Particularly, their history in relation to genocides such as the Holocaust has developed strict limitations for the purposes of regulating hate speech to prevent genocides from recurring. A provision in which effectively outlines Germany’s legal severity would be section 130 subsection 4 of Germany’s Criminal Code, which prevents persons from violating the dignity of the victims (German Criminal Code, 1998). In particular, the subsection outlines that persons who glorify or justify National Socialist rule of arbitrary force are liable to imprisonment; the section is directed towards persons who endorse Nazi ideologies, persons who deny genocides such as the Holocaust, and those who praise and defend Nazi practices (German Criminal Code, 1998). This provision exemplifies the need to regulate freedom of speech, particularly hate speech, considering the fact that Holocaust denial and further recommendations for genocide have the ability to develop a prominent profile. Essentially, this has proven to be evident during the 1980s in Germany; prior to the establishment of these regulations, far-right political parties “began to win local, regional, and even national-level electoral contests” following the second world war (Bleich, 2011). Overall, the impact of these statements has proven to end in violence towards minorities as well as genocide. For instance, ideologies inciting hatred towards the Jews began to thrive as they were constantly exposed by prominent political figures during this time; Hitler may be the most well-known example of this, as he came into power from public support for spreading hatred against Jews. Eventually, the advancement of hate speech resulted in the Holocaust. In this way, “bad history” in the form of hate speech and Holocaust denial has proven to serve racist or neo-Nazi propaganda, in which “fans the flames of racial distrust and hatred” (Bleich, 2011). As a result, Germany has enacted strict laws in order to prevent the perpetual cycle of genocide and racism within their country.
The existence of these laws exemplifies the insufficiencies of the US legal system when dealing with instances of hate speech and genocide. First, the US model allows for the advocacy of genocide insofar as danger is not imminent; the Brandenburg test provides a constitutional reasoning for protecting the freedom of speech by drawing a distinction between speech and action, as it states “a statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments” (Wertheimer, 1994). Specifically, hate speech and the promotion of genocide are permitted based on the US constitutional belief that “speech does not incite violence” (Wertheimer, 1994). However, this system has not been effective in regards to preventing violence and hatred towards minorities. This is relevant in relation to political figures such as Trump, as he uses his privilege of free speech to demonize immigrants and minorities (Peterson, 2018). Trump’s ideologies began to motivate white supremacists, particularly American Nazi sympathizers, who have similarly voiced their hateful opinions of minorities and have proceeded vandalize areas, such as Charlottesville, with anti-semitism remarks and violent rallies (Peterson, 2018). In this way, the US maintains the risk of perpetuating genocide by remaining lenient in regards to limiting freedom of speech. Moreover, it is evident that acts such as these have psychologically harmed minorities to the point where physical damage is evident. Particularly, the psychological effects of hate speech have proven to enhance anxiety, fear, rapid breathing, PTSD, depression, psychosis, panic attacks and suicide (Levine, 2018). In this way, limitations on free speech do not extend to “racial equality, order, and the avoidance of deliberately induced trauma” (Levine, 2018). For example, the US has strict regulations regarding free speech and its involvement with copyright but fails to extend these regulations for the purposes of protecting minorities (Levine, 2018). Essentially, it appears that the US legal system values liberty over equality, whereas Germany’s system serves to prevent the perpetuation of racism and genocide using strict provisions against the advocacy for genocide; this appears to be significantly more effective in reducing anti-semitism, as the US remains in a perpetuated cycle of racism and violence.
In addition to this, Canada similarly appears to be less concerned of minorities, especially in regards to their own histories of genocide; although Canada argues against supporting genocide, the sterilization of Indigenous groups and the Japanese internment camps do not fit into Canada’s definition of genocide (Walker, 2010). This is problematic, considering the fact that the international definition of genocide aims to prevent the elimination of groups which include Indigenous and Japanese cultures (Walker, 2010). Based on this principle, Canada’s leniency suggests that protection towards minorities is considered to be of a higher value in Germany. Moreover, Germany continues to handle the limitation of free speech more sufficiently, seeing that Canada legalizes false news; Canada allows for denigrating speech including Holocaust deniers, which has been exemplified within the case against Ernst Zundel, a neo-Nazi who was released from his conviction as a result of section 181 in the Canadian Criminal Code (Crown v Zundel, 1992). Furthermore, Canada’s legal system is significantly lenient as opposed to Germany regarding the projection of hate speech, as the Canadian democratic principle allows for racist or hateful thoughts insofar as they are expressed within a private sphere (Walker, 2010). For example, section 319 of the Canadian charter states that racism or hate speech must be proven to be unintentional and unwillfully exercised (Walker, 2010). Essentially, an unwillful promotion of hatred with sufficient evidence may serve as a sufficient defense against prosecution (Walker, 2010). Based on these three systems, it appears that Germany handles the limitations of free speech most effectively than Canada and the US, as they prioritize the protection of minorities and prevention of genocide using their strict legal provisions.
Which theory of the law, if any, best explains how the legal system is acting and why do you think so?
The theory of law that best explains how the German legal system operates would be legal realism, particularly Wendell Holmes’ approach. This is based on the fact that both legal realism and the German legal system challenge the dependency on logistics and procedural objectivity in the realm of law. Specifically, both argue against the idea that the subject of law is primarily based on a set of logically connected elements; Holmes makes this explicit when he states that “the law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics” (Holmes, 2017). Essentially, this theoretical approach establishes that the law is not primarily dependent on deductive logic (Holmes, 2017). Similarly, Germany’s legal system exemplifies this, as it continuously developed over centuries for the purposes of preventing the rise of right-wing ideologies, anti-semitism, racism, and genocide (Bleich, 2011). Holmes continues to explain that “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race” (Holmes, 2017). To reiterate, the law is uncertain and is informed by morality, thus it cannot only rely on systematic logic; Germany’s legal adaptations during the 1970s and 1980s illustrates this argument. In particular, the laws which were present during this decade were incapable of punishing individuals for denying the Holocaust; an appellate court in 1978 had ruled that Holocaust denial “did not contravene existing laws against insult” (Bleich, 2011). However, the rise of fascism and support for right-wing political parties as a result of Holocaust denial had enabled the German government to drop this precedent (Bleich, 2011). As a result, Germany had introduced a bill in September 1982 in order to prevent the growth in right-wing activity (Bleich, 2011).
In order to further secure the downfall of fascism and neo-Nazi ideologies, the German government continuously conducted revisions to the criminal code (with respect the incitement of hatred) in 1985 and 1994 (Bleich, 2011). Moreover, present-day Germany maintains strict legal provisions in regards to limiting free speech, seeing that the leniency of free speech has led to hatred and violence towards minorities, specifically Holocaust victims and Jews in general (Bleich, 2011). Despite Germany’s previously held-values of free speech, which eventually led to Hitler’s reign, morality has informed the German legal system through these legal adaptations. In these ways, the German legal system acts on the basis of legal realist methodologies in order to prevent the rise of antisemitism, racism, and genocide in German society that was previously considered to be legal during the reign of Hitler and Nazi-Germany. As a result of the Holocaust, Germany does not only rely on logic as a determinant factor through their legal system. Overall, the German legal system aligns accurately with the theoretical approach of legal realism for the purposes of preventing an abundance of hatred, as this has been proven to lead to violence and genocide.
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