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Freedom of Expression Part 1: Hate Speech, Linehan, Trans as a Protected Class in California

Graham Linehan was banned from Twitter last week. Graham Linehan is an Irish writer and creator of Father Ted and Black Books.

Twitter closed Graham Linehan’s account for tweeting “men aren’t women though” which twitter perceived as “hate speech” and offensive to the Trans community. Context always shapes meaning, and so I thought it would be useful to explore how hate speech is interpreted in California and then to see how it is treated in Fiji.

As a general rule of thumb, people have the right to their freedom of expression or to hold an opinion with the freedom of expression for as long as it respects and does not harm others’ rights and where it meets a three-tier test which is provided by law.

The three-tier test provided under international law for countries that have ratified it can then be codified by Parliaments of countries that have ratified it and are under an obligation to enact law that conforms.

In 2012, I had facilitated an Online Freedom of Expression Webinar 2012 that dealt with Online Freedom of Expression where I had discussed the three-tier test and drew from diverse jurisdictions such as Iran, Pakistan, India, China, Tunisia, etc. This was in the backdrop of the United Nations Council of Human Rights meeting and where the then Special Rapporteur Frank La Rue had just completed his report after global consultations on the subject.

History teaches us that boundaries and perceptions continue to shift. Under International law, Freedom of Expression is enshrined in Article 19 of the International Covenant on Civil and Protection of Political Rights (ICCPR). The ICCPR has been ratified by several countries, including the U.S. and the United Kingdom. Most countries accept that freedom of expression is not an absolute right and has exceptions. For countries that chose to ratify the ICCPR, Article 19 is not an absolute right and has three exceptions:

  1. public order, public health, public moralitye.g. We can’t shout fire in a crowded cinema if not true (public order); Obscene publication such as pornography, child online pornography (public morality).
  2. xenophobia, including hate speeche.g. Publications showing cartoons of Jews with extra-long noses; propaganda that incites genocide or hatred within a community.
  3. national securitye.g. during the bombing in London, when Government ordered Telcos to suspend all communications within a certain radius impacting on people’s ability to communicate.

In the US, Freedom of Expression was tested in Cohen v State of California 403 U.S. 15 (1971). Cohen v. California, was a landmark decision of the US Supreme Court holding that the First Amendment prevented the conviction of Paul Robert Cohen for the crime of disturbing the peace by wearing a jacket displaying “Fuck the Draft” in the public corridors of a California courthouse.

Within the US, “Free Speech” is in the First Amendment of the US Constitution. Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising. Schenck v. United States, 249 U.S. 47 (1919) where the Supreme Court held that where there was a clear and present danger that it could limit free speech.

Twitter a Californian based entity (incorporated in Delaware whose services are provided internationally by Twitter International, an Irish based company), banned Linehan from their Twitter platform for saying, “men aren’t women” though, because it is deemed offensive to the LGBTQ community. The question that surfaces is whether Linehan’s comment and opinion are protected under the First Amendment right and in international law. I would recommend reading the following:

  1. Freedom of Expression Under the Californian Constitution
  2. Regulating Hate Speech in California

Twitter’s position to ban Linehan is based on the premise that what Linehan said is hate speech to qualify Linehan being banned from Twitter. In California, the Ralph Civil Rights Act 1976 allows aggrieved persons to file a lawsuit and make a civil claim that a person was the victim of a hate crime or a threatened hate crime. A claim is based on the person being targeted because of his or her race, gender, sexual orientation, religion, sexual orientation, or other protected class. Imagine 500,000 claimants claiming that they were aggrieved that would be $125,000,000,00 in damages alone, excluding lawyers’ fees. We can see that the position that Twitter took was to protect itself from litigation where they felt that Linehan’s content was perceived to be a threat to the Trans Community.

In Fiji, we have decisions where the court would have held the same view as Linehan, see: Female ABC v Registrar of Births, Deaths & Marriages [2015] FJHC 1044 where Justice Seniviratne said the following in his judgment: “For male-to-female transsexual surgery, breast augmentation is done for patients whom the breast enlargement after hormone treatment is not sufficient for comfort in the social gender role. Genital surgery includes at least orchidectomy (removal of both testes), penectomy (removal of penis), creation of a new vagina. The new vagina enables penetration of penis during sexual intercourse. There is the preservation of erotic sexual sensation. However, surgery cannot remove the prostate organ or provide a functional uterus or ovaries, or otherwise establish fertility or childbearing ability. Neither can it change the sex chromosomes of the person, which remains that of a male.”

From Twitter’s position and Californian law, it is obvious that the Trans community is a protected class where the definition of gender has a broader interpretation than that of the Fiji courts.

So I asked a friend, Cassy Judy, an Australian lawyer,  who self identifies as a transwoman and a musician on her views, and this is what she had to say:

“It’s logical that people’s freedom to speak would be limited by not causing harm to others. People are entitled to self-determination. I would argue that this goes so far as to include gender in its variant forms. Seeing gender as a binary, divorced from a compassionate inquiry into the truth of how an individual feels their gender to be, will always be a limited, self-serving inquiry and harmful to the health and wellbeing of those who identify in a way which does not conform with narrow viewpoints about genitals and gender, e.g., penis = man, vagina = woman. Some men have vaginas, and some women have penises. I think that at least in Australia, we are having a broader understanding of gender. This is positive for gender diverse peoples.”

Cassy has just released a song that she asked me to share widely, so you can access it here.

To conclude, in my view, people, including Linehan, should be free to hold opinions that may be different from ours. For some, these can be influenced by religious beliefs, ideologies, and philosophical worldviews, and it is ok to be different. We cannot expect 7.6 billion people to have the same view, but we can all co-exist and have respect for each other’s humanity.

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The USA is not bound by the Mike Burns  –  Jul 7, 2020 7:56 PM

The USA is not bound by the ICCPR due to signing it with listed reservations. There was nothing in Linehan’s speech that would have enabled any action under Ralph, which requires violence or the threat of violence.  Twitter could not have been sued under Ralph, nor could anybody else, given the lack of threat in that tweet. There has to be a crime, where is the crime?
Twitter merely chose to censor thoughts it found disagreeable.

The ban was not based on a Michele Neylon  –  Jul 11, 2020 5:15 PM
Twitter is not a government entity Shamus McGillicuddy  –  Jul 14, 2020 6:14 PM

Thank you for your thoughtful essay. I agree with much of it.

One thing I wanted to highlight is that Twitter is not subject to rights of free expression since it is not a government entity. And I don’t believe Twitter acted out of a fear of being liable for damages made by perpetrators of hate speech. Twitter is simply enforcing the standards of its terms of service, which is governed in part by prevailing public standards of decency. Linehan demonstrated a long record of continued violations of Twitter’s rules governing hate speech.

Freedom of expression in the United States guarantees one’s right to speak one’s mind, within certain limits. It protects one from government action. However, it does not guarantee a platform for expression. No entity can be compelled to amplify someone’s speech, regardless of rights afforded by international treaties or national laws. This is an important distinction because many people in the United State conflate the right to free expression in the Constitution with censorship by corporations like Twitter, Facebook, and Google. These misinformed people believe that censorship by a media platform violates their constitutional right of free expression. They are mistaken.

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