Doctrine and Consequences

: A socio-legal Analysis of American Debates on Free Speech and Incitement to Racial and Religious Hatred

Abstract

This thesis attempts to draw upon critical legal scholarship of the United States First Amendment law, particularly the wide ‘freedom of speech’ it allows, to frame a discussion concerning the Amendment’s apparent tolerance of speech inciting racial and religious hatred against the backdrop of recent mass shootings or violent attacks of white supremacists’ perpetrators who cite, disseminate, or are influenced by online hate speech. The thesis is engaged in a critical, doctrinal, theoretical, and evidence-based commentary upon First Amendment Incitement Doctrine (the rule in Brandenburg). The crux of the First Amendment Incitement Doctrine is that speech can only be censored if it produces an immediate illegal action. The combination of legal and jurisprudential analysis is then complemented, in the second half of the thesis, with discourse analysis of online newspapers/magazines to illustrate the harm resulting from First Amendment’s wide tolerance of free speech. I argue that the evident consequences of abusive hate speech should also be factored into future discussion and debates around the First Amendment. The theoretical framework of this research locates the analysis of hate speech regulation in Ronald Dworkin’s teaching on how to interpret the law and not in the scholar’s ‘free speech absolutism’ where I argue that this erudite scholar misapplied his own theory. The research philosophy utilized here is interpretivism. I assessed 2637 online articles and conducted a thematic analysis. The study finds that African Americans and Jews are the main targets of hate speech perpetrated by white supremacists and that internet communication has been used to amplify this hatred. The study further finds that online hate speech tends to drive offline violent acts. My original contribution to knowledge is the overarching importance of contextualizing harm and the imminence of risk when interpreting free speech cases and concomitantly, that discursive constructions in media should be utilized by the Supreme Court when seeking to regulate online hate speech that harms historically oppressed minorities in America. If the momentum of online hate speech against racial and religious minority groups is not effectively checked by the law, America could well be facing a ticking time-bomb as has been argued-the Capitol Building episode may be a case in point.

Date of Award	Jan 2023
Original language	English
Awarding Institution	University of Brighton
Supervisor	Peter Squires (Supervisor) & Adaeze Okoye (Supervisor)