continuing proofs America is wacko [2]

Pettytyrant101 wrote:Well the normal process if its witnessed would be someone makes a complaint to the police, or if not witnessed the person who feels threatened or intimidated would. Then police speak to all concerned and they will make the initial call on whether within the law they feel there is a case to answer.
If they do then they file a report to the Prosecutor Fiscal, who makes the decision on whether they think the chances of a successful prosecution are good or bad. If bad they will not proceed further and the case is dropped. If good then it would proceed to court.
It would need to be quite severe to warrant jail time.
In the above case the most likely result would be the case would proceed if a complaint was made, there is clear evidence of the racist display, they would be ordered to remove the display and not have it again and a fine and/or community service would most likely be the punishment element.

wow that sounds like a lot of work! wouldn't it be easier to just pepper the image with bird-shot?

That there is an AMERICAN speaking!

wouldn't it be easier to just pepper the image with bird-shot?- David

That would involve giving all our police guns. We think this is a bad idea for two reasons.

1. Then the criminals all want them too.
2. America.

I wasn't planning on bothering the police.

See reason 2 above.

Saw the offending pic, what do I think ? I think someone is pissed off at Obama more than anything else. His written attack, ( emphasized by the banana ) is his way of saying Obama has let him down. Which I might have accepted but for the headdress. now it seems aimed at Hindu's, Sikhs,& anyone else with a darker tan than you. Im pretty sure Obama is used to name calling. Hes not daft, he knows people say whatever they want about him, his strategies, his plans & ideas. Its the outfit I think thats gonna incite a ruckus And no, I hope UK doesnt resort to all police carrying guns. I can sit easy with Specialist marksmen, brought in when urgent but, thats as far as Id like to see it.

Az, I'm afraid there's more to the banana than that. In the culture of American racism, it's used as a shorthand for saying African Americans are apes. It's pretty mean spirited stuff.

I wonder if such a public display of prejudice would also fall foul of the laws on incitement here? I am sure a canny lawyer, like Blue, could argue that making a public display of racism and driving around with it, constituted an incitement in others to breach of the public peace.

Ooops, Sorry Dave I didnt realise that. Goes to show how different our laws & our countries can be even tho you & I both speak English & are similar in lots of ways.

Pettytyrant101 wrote:I wonder if such a public display of prejudice would also fall foul of the laws on incitement here?

A good question.... I'm assuming you're thinking of prosecuting Bungo for driving his truck through the streets of Forumshire, right?

azriel wrote: Goes to show how different our laws & our countries can be even tho you & I both speak English & are similar in lots of ways.

That's what makes Forumshire debates so fun! What's the difference between Grey and Gray for example? There are unlimited possibilities for confusion.

Thank you for the discussion guys. It was an interesting read, particularily to get the different cultural perspecitves on the matter.

Legally, and in human rights terms, this would be a question of weighing the right to free speach both against that rights inherent limitations and other human rights like the right to freedom from discrimination.

I might do you a proper write up of that. Not tonight though.

Naturally, there is always a balancing act between "freedom of" and "freedom from" rights in any society, but I'm not sure where discrimination enters into the truck bumper example

Well, the truck driver is using his freedom of expression to communicate his political opinion through the truck bumper. The question is wether the political message on the truck bumper could be said to be discriminatory and as such infringe on another persons right not to be discriminated against. If it does, the right to not be discriminated against on basis of race, the banana, or religion, I'm guessing the turban is some kind of suggestion towards the Obama being a muslim thing, could be infringed and as such the persons right to freedom of expression would be limited in that area. The area of political debate is particularily open for exchange of opinions though, even those that would otherwise seem to breach another persons rights in other areas, so it's still a question of wether this bumper message in particular would overstep the mark.

The relevant article of the European Convention of Human Rights.

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

You see, freedom of expression is not an absolute right and is limited, particularily in cases of discriminating expressions.

It's interesting that you and the British seem to have a different view on which side of the argument this statement would fall.

I had a giant post in response to this, but I don't really feel like getting into it. My original post was made because I didn't consider offensive speech to fall under the label of discrimination (which I tend to think of in the context of employment/housing discrimination and other actions rather than speech), but having done some reading about UK discrimination law in the course of writing my now-deleted post, it is clear that in the UK, at least, speech/harassment is classified as a type of discrimination. So I think I understand what you were getting at now.

Note that discrimination was not mentioned in Article 10 above.  So saying "You look stupid" is legally equivalent to saying "You look like a black man, therefore you are stupid": it has the same final meaning, just with added racism which is not covered.

So the question come down to judging whether a person has a legal right to say publicly "You look stupid."  In america it's illegal to use such judgements to guide public actions, including commerce, access to property, etc.  It's also illegal to tie it to threats, though the severity of the threat matters and is not well defined.

So a simple bumper sticker making a racist statement would not be considered illegal unless there is action behind it, either real or if severe enough, implied.

halfwise wrote:Note that discrimination was not mentioned in Article 10 above.  So saying "You look stupid" is legally equivalent to saying "You look like a black man, therefore you are stupid": it has the same final meaning, just with added racism which is not covered.

So the question come down to judging whether a person has a legal right to say publicly "You look stupid."  In america it's illegal to use such judgements to guide public actions, including commerce, access to property, etc.  It's also illegal to tie it to threats, though the severity of the threat matters and is not well defined.

So a simple bumper sticker making a racist statement would not be considered illegal unless there is action behind it, either real or if severe enough, implied.

Ah, we're attacking this issue kind of from the wrong direction. And it's probably my fault, as I find the limitation in the right to free speech kind of interesting in itself and kind of started at the wrong end.

So to start at the beggining.

Article 10 of the ECHR establishes the right to freedom of expression. It does not say which kind of expressions are not allowed. That is decided by the national governements in national law. Now national governements have two obligations under International Human Rights law, firstly they have to respect the postive human rights of the individual codified in international human rights law and secondly they have to negatively defend the individual from breaches and encroachment on the human rights of the individual from other individuals. Not making rules and affording people protection from discrimination under national law would breach other articles and rights in the ECHR.

Now the obvious defence for a person who makes a discriminating statement would be to say that they can't be prosecuted for it as it falls under the right to freedom of expression in article 10 of the ECHR. And if the discriminating statement falls in under article 10, punishing someone for it would be a breach of their human rights. Generally the protection in article 10 protects all statements, also racist ones, so we have to look at the limitations to article 10, in the article itself and in other rights in the convention.

The problem here for the non lawyer is that the expressions in the articles themselves aren't very straight forward and have anyway been given particular meaning through the case law of the European Court of Human Rights. That employs an, oft critisized, dynamic interpretation of the convetion. Which basically means that the convention is "a living instrument that must be interpreted according to present-day conditions" and that the court has put meanings in the treaty that goes far beyond what at least several countries would claim can be read into the article themselves. The whole idea of Great Brittain leaving the treaty pretty much has it's basis in this.

Now firstly discriminatory statements are said to fall outside of article 10 by a combined reading of article 14 and 17.

ARTICLE 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

ARTICLE 17
Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

But in practice the court normally solve the problem by seeing the national laws against discriminatory statements as falling in under article 10 (2) were the signatory states has codified rules against discriminating and racist comments in national law. This is allowed when the national rules are;

1.  "Prescribed by law" and "Necessary in a democratic society."
2.   In the interests of national security, territorial integrity or public safety.
3.  For the (these are alternative)
- prevention of disorder or crime,
- protection of health or morals,
- protection of the reputation or rights of others,
- for preventing the disclosure of information received in confidence, or
- for maintaining the authority and impartiality of the judiciary.

Here's a formulaic description of the courts role in the 10 (2) consideration from Lindon, Otchakovsky-Laurens AND July v. France;

"The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998‑VI; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004‑XI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005‑II; and Mamère v. France, no. 12697/03, § 19, ECHR 2006‑XIII).

46.  There is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance (see Brasilier v. France, no. 71343/01, § 41, 11 April 2006) – or in matters of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV, and Brasilier, cited above).

Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance."

So, there is of course the question of wether the truck bumper message would have been allowed anyway.

The most central quesiton here is wether the limitation is necessary in a democratic society. Which in Tønsbergs Blad AS and Haukom v. Norway is summed up as:

"The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10."

So if the limitation is not viable after article 10 (2), the expression would be protected by article 10 (1). And punishing it would breach the discriminators human rights. That is not normally the case with discriminating statements though, they are normally seen as necessary in a democratic society. And remember here that not having rules protecting people from discrimination would violate the discriminatees other human rights.

There's a case against Denmark that illustrates this quite well. A Danish journalist interviewed several people from a racist organization in the course of making a tv program who made widely racist and discriminatory remarks. Both the journalist and the people from the racist organization were judged for the racist remarks when the program was broadcast under national Danish law, but judging the journalist were seen as a breach of article 10 by the court as he hadn't made the statements himself and only made them public as part of a journalistic effort. That the actual racist and discriminating remarks from the people from the racist organization weren't protected by article 10 were seen as self evident.

Eldorion wrote:I had a giant post in response to this, but I don't really feel like getting into it.  My original post was made because I didn't consider offensive speech to fall under the label of discrimination (which I tend to think of in the context of employment/housing discrimination and other actions rather than speech), but having done some reading about UK discrimination law in the course of writing my now-deleted post, it is clear that in the UK, at least, speech/harassment is classified as a type of discrimination.  So I think I understand what you were getting at now.

Oh, it's my fault. I should have made it clear that I was talking about the situation under European Human Rights rules. After all it was the difference in you Americans and the British opinions on this both legally and morally that I found so interesting. The ECHR has been made part of national law in the UK, so UK law should ideally be consistent with what I put above.

You and Halfwise are completely right, of course, about the situations under American rules. The US is of course not bound by the ECHR. I do wonder though about the legal situation in relation to International Covenant on Civil and Political Rights which the US is a signatory of. They have made the relevant article non-applicable for US national courts, but it could still constitute a treaty breach I'm guessing. Poking around a bit it's interesting to note that the US has taken rather wide reservations from the International Convention on the Elimination of All Forms of Racial Discrimination too, to allow the legal situation you describe, as the international obligations would otherwise would get into conflict with the right to freedom of speach in the US Constitution.

Thanks for that big post Blue. As always with legal stuff for me it was about as clear as mud on first read, and slowly got clearer on subsequent readings. But I both enjyed the read and got educated.
Fascinating stuff the actual minutae of the laws which govern us, by allegedly our consent.

Not that I have a particular issue with these laws myself in how they have been used to date. But it does worry me that for the lay person there is no chance of every grasping the detail or substance of the laws which govern us. And that even the expert will only ever know a portion of them so abundant are they now.

Ah, your welcome. I'm doing this stuff for a course now anyway, so it was probably good for me to put it all down like that (Now all I have to do is remember it. ) And I learned something about how the Americans handle this stuff too, which was interesting.

Pettytyrant101 wrote:Not that I have a particular issue with these laws myself in how they have been used to date. But it does worry me that for the lay person there is no chance of every grasping the detail or substance of the laws which govern us. And that even the expert will only ever know a portion of them so abundant are they now.

That is a problem, as the Human Rights rules are meant to protect exactly the "lay person." It's good to reflect though that the dynamic interpretation of the ECHR has meant further rights for the individual though. And often at the distinct displeasure of the state parties.

I'd be interested to hear what you think of all the talk about the UK repealing the ECHR.

Im a pro European. Scotland as majority is by about 60 to 40. Its England who want to take us all out of it.

I think there are a lot of problems, both corruption of the usual illegal sort, but also fo the lining their own pockets through loop holes kind- like turning up and signing in for a meeting, leaving after five minutes, having a slap up lunch on tax payers expense and spent the afternoon with friends sightseeing then claim a full days wage for being in the meeting because the record shows you were there because you signed in. There seems a bit too much of that sort going on.

But I see these things as problems to be addressed not reasons to quit as the overall principles are worth the effort and worth the fight.
And I really dont like the thought of going to a situation where the highest court I can appeal to is the UK one, and no higher, and there is no independent judiciary to judge the honesty of my governments actions.
I think thats a principle we can't afford to lose, especially in light of the comments on the BBST on the other issue under discussion, and my and Azriel's opinion of the UK justice system. A commonly held opinion in the UK among many people.

The thought of the UK judiciary being the only legal check on government is frightening, this is the same judiciary who backed Blair in declaring the Iraq war a legal war under the UN article, when everyone and their cat knew it wasn't.

Bluebottle wrote:Ah, your welcome.  And I learned something about how the Americans handle this stuff too, which was interesting.

 

Do you mean about with the shotgun?

(Shotguns are a form of free speech too, at least around here )

Eldorion wrote:I had a giant post in response to this, but I don't really feel like getting into it.  My original post was made because I didn't consider offensive speech to fall under the label of discrimination (which I tend to think of in the context of employment/housing discrimination and other actions rather than speech), but having done some reading about UK discrimination law in the course of writing my now-deleted post, it is clear that in the UK, at least, speech/harassment is classified as a type of discrimination.  So I think I understand what you were getting at now.

Speech is a powerful thing and can incite a group to terrible acts, so I like the way the UK does some things. I watch some of the police shows from Wales and such and was amazed that you can be put in the nick for swearing. They don't make much but if you see how the Canadian police are armed to the teeth and in black and even at border control can do all the arresting because they are police not workers, and how they body build to the nines, well not many swear and say things, even drunk against others and others race or religion etc for fear of being tasered to death, which some have. One gentleman who was merely tired and waiting for his mother was taken down and tasered over and over til dead.

Eldo you just keep getting lovelier and red hair suits you.