JUSTICE - No. 66

17 Spring 2021 nline hate speech is particularly insidious because of the scale, scope, and speed of dissemination of online content. Antisemitism involves some of the worst forms of hate speech given the deep patterns of animosity it invokes, its propensity to fan the flames of hatred through circulating libelous conspiracy theories, and the tendency for revictimization of victims of antisemitism. Given the seriousness of the problem of online hate speech, online antisemitism is of particular concern. A growing discourse has developed in academic, legal, and policy-making circles concerning the adequacy of the legal standards that define and delineate the scope of freedom of expression, and the manner in which such standards apply online in general, and vis-à-vis private technology companies in particular. In this discourse, human rights activists may find themselves in the awkward position of calling for more content moderation — i.e., restrictions on free speech. This article evaluates, through the lens of international human rights law, some prominent features of the discourse concerning the legal regulation and mechanisms aimed at curbing online antisemitism and other forms of hate speech. Utilizing international human rights law as a point of reference offers a broadly accepted critical perspective for evaluating the hate speech policies of technology companies that operate on a global scale, as well as for assessing the propriety of the regulatory efforts undertaken by national governments. As history shows, regulatory efforts undertaken by national governments have often gone too far in limiting freedom of expression. The Relativity of Freedom of Expression It is worth repeating – especially to a U.S. audience whose sensibilities toward free speech have been shaped by the broad language of the First Amendment to the U.S. Constitution 1 — that freedom of expression is an important human right, but (like most human rights) it is not an absolute one. Even the U.S. Supreme Court has recognized that certain expressions might be justifiably limited, for instance, if they are directed at inciting or producing“imminent lawless action”and are likely to generate unlawful results. 2 Most other liberal democracies go beyond U.S. standards and establish a broader range of circumstances that would justify limiting certain forms of offensive speech. 3 International human rights law provides a framework for evaluating the legal circumstances that give rise to permissible and impermissible limits to freedom of expression. Articles 19 and 20 of the main global instrument protecting freedom of expression — the International Covenant on Civil and Political Rights 4 International Human Rights Law and the Fight Again st Online Antisemitism* O Yuval Shany * This article is based on a lecture by the author at a Symposium on Cyber-Hate: Defining and Combating Antisemitism and Hate Speech Online, held at Berkeley Law School on March 4, 2021. 1. U.S. Constitution, First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”). 2. See e.g. Brandenburg v. Ohio, 395 US 444 (1969). 3. See e.g. Loi du 29 juillet 1881 sur la liberté de la presse, art. 24 (France); Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 1998, BGBl. I at 3322, as amended, §§ 130, 185-192 (Germany); Criminal Code, R.S.C., 1985, c. C 46, sec. 318 (Canada). 4. International Covenant on Civil and Political Rights, 16 Dec. 1966, Art. 19, 999 U.N.T.S. 171 (ICCPR) (“2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the