Speech can have different impact depending on how the listener responds to it. If I tell you the readers of this blog posting to go kill an elephant, most of you will think I am crazy and only the craziest of you will actually follow my command. In a situation like that, it will be very unfair to hold the speaker responsible for the elephant killing. In a field of tort law, if someone runs a gas station and someone throws a lit cigarett butt into a gas dispenser hose causing an explosion, the gas station will be not be held responsible. It will be fair to hold the speaker responsible for the impact of the speech only if the speaker had reason to believe that his or her command would actually incite people into action.
Another example: people use epithets to show affection among a homogeneous group of people. African Americans use the n-word to one another in friendly settings. Women the b-word. Depending on the context, “one’s vulgarity may be another’s lyric”. Who speaks the same word to whom when and where has a strong determinative force on the impact that speech can have.
Speech is interactive in a sense that the impact results from interaction between speech and the listener. Action, meaning physical action as opposed to communicative action, which is speech, is not interactive because the act of killing an elephant already includes the impact, that is the death of an elephant.
Therefore, attaching civil or criminal liability to speech must be limited to a situation where the impact is foreseeable to the speaker. One formulation based on this belief results in the American jurisprudence of “a clear and present danger” which dictates that only speech accompanied by a clear and immediate danger of causing ‘physical’ impact can be restricted or the speaker held responsible.
This principle can guide sensible application of hate speech regulation. Article 20 of ICCPR requires State Parties to prohibit ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’ How about Jews calling Nazis “f__king Aryans” while they are being taken to gas chambers? Article 20 mandate can be applied better if it is limited to a situation that advocacy or incitement is likely to result in actual discrimination, hostility or violence. The above Jewish epithet is unlikely to result in actual discrimination, hostility or violence against Aryans for it was the Aryans that had actual dominance of power. To the contrary, as the records actually show, Aryans’ eptithets hulled against Jews during the Second World War actually started mob violence against Jews. Hate speech should be punished because it is likely to cause harm as it works like a current through a society already hard-wired with discriminatory tendencies against some groups. In a society dominated by men’s superior physique, a feminist mirroring call for “rape all the men” is not likely to result in the corresponding actions but men encouraging one another to rape a female target often does achieve the terrible result.
The principle based on the interactive nature of speech can explain and is consistent with several rules of international human rights law. For several decades, the UN Human Rights Committee has recommended to abolish the “crime of spreading falsities” and to release the people charged under that crime. The main reason was that the charges were used by authoritarian governments and dictators to suppress citizens and voices critical of the regime. However, another formulation is that false speech by itself does not present a special reason to believe that it will cause any harm. The Canadian Supreme Court in Zundel found that deliberately false speech can serve valuable social functions of attracting people’s attention on issues of otherwise low visibility: an environmental activist crying “the disappearing rainforest in British Columbia” to raise people’s awareness should not be made to fear that he/she may be punished for a reason that there is really no rainforest in that region. This opinion is consistent with the interactive nature of speech, in that false speech does not present a clear and immediate danger just for being false.
Now, there are times that false speech is punishable when it is directed against a specific person as in the case of defamation as the Zundel court compared. False speech about a specific person can discredit that person so as to frustrate and undermine his/her social functions: It is likely to cause physical impact. False speech about a group of people has less risk of doing so and that explains why defamation laws of many countries have the element of “being directed at a specific person”. Also, the crime of fraud protects us from specific threats of losing our valuables over false coaxing. The Korean Constitutional Court in 2010 also struck down a crime of “engaging in false telecommunication for the purpose of interfering with public interest” for reason that “public interest” is unconstitutionally vague. The Court’s ruling can be interpreted as a rule that one cannot be punished for false communication itself but it must present certain harm for, otherwise, the Court would not have required public interest to be clearly defined.
Copyright law, which regulates speech, can be explained by this principle because duplicating someone else’s creation takes away the revenues that the author would have received. Child pornography law fits comfortably with the principle because the harms done to children featured in the material were the modus operandi behind the legislation.
The UN Human Rights Committee has recommended not to punish “statements not subject to verification”. What are those statements? Statements of sentiments and opinions like “K.S. Park is handsome” are not subject to verification. International human rights bodies have for years called for abolition of insult laws. It is because expressions of feelings and opinions do not present a special likelihood of causing specific harms as opposed to falsifiable statements of facts. If a real estate agent lies to a prospective home buyer that “a new highway is planned to be built this year”, that falsity anticipates much greater impact than when he or she opines that “this neighborhood is likely to attact a highway construction within this year”.
Now, there is one big anomaly: obscenity, as many American free speech scholars believe. Yes, it is designed to combat material likely to corrupt the viewers’ mind but it does not explain the requirement that material “utterly lacks” artistic, social value. If material is corrupting a specific mind, why does it matter whether it has some loosely defined value for the society? What is more, there has been no empirical finding that obscenity actually causes anti-social sexual behavior for the obvious reason that most behaviors featured in legally obscene material are entirely legal sexual intercourses.