50 Washburn L.J. 445 (2010-2011)
Verbal Poison - Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the American System

handle is hein.journals/wasbur50 and id is 461 raw text is: Verbal Poison-Criminalizing Hate Speech:
A Comparative Analysis and a Proposal
for the American System
Thomas J. Webb
I. INTRODUCTION
The power of words is limitless. Although words can be used to inspire
people and promote good, they also can be used to destroy. In the form of
hate speech, words can be used as weapons to ambush, terrorize, wound,
humiliate and degrade.' Hate speech enabled Adolf Hitler to promote Nazi
ideas, and hate speech promoted genocide in Rwanda and in the former
Yugoslavia.2      It is used as a recruitment tool for terrorists.           It is used to
attack youth in the form        of cyber-bullying.4      On an individual basis, hate
.  B.A. 2008, Kansas State University; J.D. Candidate 2011, Washburn University School of Law. I
would like to thank Professor William G. Merkel for his valuable insights and input.
1. MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH,
AND THE FIRST AMENDMENT 1 (1993); see Gloria Cowan et al., Hate Speech and Constitutional Protection:
Priming Values ofEquality and Freedom, 58 J. Soc. ISSUES 247, 248 (2002).
2. See Cowan et al., supra note 1; Kathleen Mahoney, Hate Speech, Equality, and the State of Cana-
dian Law, 44 WAKE FOREST L. REv. 321, 323 (2009); Mariana Mello, Hagan v. Australia: A Sign of the
Emerging Notion of Hate Speech in Customary International Law, 28 LOY. L.A. INT'L & COMP. L. REv. 365,
368 (2006). Approximately 507,000 Tutsi minorities were killed in the Rwandan Genocide. See Alison Des
Forges, Leave None to Tell the Story: Genocide in Rwanda, HUMAN RIGHTS WATCH 17 (1999),
http://www.grandslacs.net/doc/l317.pdf. The conflict arose out of tension between the Tutsi minority and
Hutu majority, whose groups differed in terms of appearance and ethnicity. See Rend Lemarchand, Discon-
necting the Threads: Rwanda and the Holocaust Reconsidered, 7 IDEA J. 1, 2 (2002). It is widely argued that
media propaganda in the form of hate speech fueled the killings. See generally INT'L MEDIA SUPPORT, THE
RWANDA MEDIA EXPERIENCE FROM THE GENOCIDE 10-18 (2003) (The Rwandan media have often been
blamed for being a major cause of the genocide. . . .).
3. See ORG. FOR SEC. & CO-OPERATION IN EUR., COUNCIL OF EUR., EXPERT WORKSHOP ON
PREVENTING TERRORISM: FIGHTING INCITEMENT AND RELATED TERRORIST ACTIVITIES: VIENNA, 19-20
OCTOBER 2006, at 2, 3 (2006), available at http://www.libforall.org/OSCE%2OPreventing/2OTerrorism.pdf
[hereinafter OSCE REPORT]; see also Dr. Richard L. Benkin, Hate Speech and Political Islam: Root Cause of
Religious Extremism, Terrorism and Jihad, at **8, 29, http://www.yale.edulyiisalshoaibchoudhury-
paperl02909.pdf (last visited Feb. 8, 2011) (In today's Muslim world, political Islam is patronizing hate
speech, which I believe is the root cause of religious extremism, terrorism and Jihad.).
4. See D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Ct. App. 2010). Overall, cyber-bullying involves the
sending of hateful material through electronic means. See id. at 413. Kansas, for example, defines cyber-
bullying as bullying by use of any electronic device through means including, but not limited to, e-mail,
instant messaging, text messages, blogs, mobile phones, pagers, online games and websites. KAN. STAT.
ANN. § 72-8256(a)(2) (Supp. 2009). In D.C., a high school student posted derogatory statements on the web-
site of a fellow student. D.C., 106 Cal Rptr. 3d at 404-05. His comments mocked the believed sexual orien-
tation of the student and included statements such as, Fuck you, you dick-riding penis lover. I hope you
bum in hell, and I want to rip out your fucking heart and feed it to you. Id. at 405. The student's father
sued, accusing the defendant of committing hate crimes, defamation, and intentional infliction of emotional
distress. Id. at 405. After appeal, the California Court of Appeals found that the defendant failed to show
that the posted material was protected speech. Id. at 405.

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