Hate speech is an important part of any law school curriculum, as well as any college-level course on freedom of expression. A course examining the free speech traditions in multiple Western jurisdictions equips students with cultural and legal competences to embark on international careers in a globalizing world.

Nonetheless, comparative law perspectives on hate speech can be a highly triggering topic in a multicultural classroom, where students from different jurisdictions come to grips with the fact that many expressions they consider hateful, disturbing, lacking in moral values—hence rightly prohibited in their own jurisdictions—are in fact legal in other jurisdictions.

This essay offers you an example of the cultural shock a student from a minority group encountered in my class, which is potentially disruptive to classroom learning, while affirming the tremendous values of this topic. It also offers solutions to minimize frustration encountered by all parties and to improve both teaching and learning outcomes.

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My lecture on freedom of expression examined laws prohibiting inflammatory expressions and hate speech in the U.S., Germany, Britain, and Canada, as well as the rationales and policy reasons behind these differences.

The students were surprised, but not triggered, by the permissiveness of American law, which prohibits expressions “directed to inciting or producing imminent lawless action and is likely to lead to such action” (Brandenburg v. Ohio, 1969). Incitement of illegal activity in an indefinite future is legal, as is incitement that does not target any individual (Hess v. Indiana, 1973). “This law is no good,” said some German students. “It allows a broad array of destructive expressions that harm individuals and society both short and long term.” I offered numerous examples and asked students to apply the legal standard to determine whether the speaker would be found guilty under American law, and they easily found the correct answers. It was hardly surprising, as most expressions, despite their provocativeness, would be clearly legal due to the high legal threshold.

German speech laws serve as a polar opposite to their American counterparts. The restrictiveness of its hate speech law means that its application is very straightforward. The German Penal Code Section 130 aims to prevent discrimination and to uphold the dignity of all people. Penal Code 130(1) prohibits the incitement of hatred or violence against “a national, racial, religious group or a group defined by their ethnic origin, against sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population,” and a more general conduct that “violates the human dignity of others by insulting, maliciously maligning or defaming one of the aforementioned groups, sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population.”

Because German law protects the dignity of groups, a German appeals court determined that blanket statements disparaging women by referring to them as “second-class citizens” and “inferior animals” are illegal. The court referred to the penal code stating that “the section of the population included in the scope of protection is in no way limited by the characteristics expressly mentioned.” Thus, even though “women” is not expressly mentioned by the German law, they are also protected. Based on this ruling, students easily pointed out that blanket humiliating statements about any group or section of the population are likely to constitute hate speech in Germany.

In the U.K., hate speech has a higher legal threshold than its German counterpart. Legislation forbids expressions that threaten, advocate genocide of, or incite hatred against any people on account of identifiable characteristics such as color, race, religion, national or ethnic origin, age, sex, sexual orientation, or gender identity and expression. The thresholds for advocacy and incitement of hatred are high enough that strong personal sentiments toward identifiable groups alone would not suffice.

One example is R v Fransen and Golding (2018), in which the former deputy leader of a far-right group was convicted of a hate crime at an antiterrorism event in Ireland for stirring up hatred and arousing fear toward Muslims by telling her audiences that the Muslims “are baying for our blood,” and it was time for the world to come together against “the one common enemy.” Her co-defendant was acquitted for comparing Islam to “a wolf coming down the track,” which the judge determined to be “ugly” but not illegal.

The Canadian threshold for hate speech is similarly high. The Canadian criminal code prohibits promotion of genocide of any identifiable group, wilful promotion of hatred of any such group, or incitement of hatred that would lead to a breach of peace of any such group. While the promotion of hate propaganda against groups was prohibited in the past (see, for example, R. v. Keegstra, 1990), the mere belittlement and affront to the dignity of groups have been held legal by its Supreme Court.

For people who value harmony and have a distaste for provocative statements that they deem to upset this harmony, it can be challenging to draw the line between advocacies/incitement of hatred that are prohibited and expressions of strong personal sentiments that, though disgraceful, would not likely violate the law. Hence, the application of British and Canadian laws to hypotheses are less straightforward: Disagreements among students are common, as are strong emotional reactions.

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After the lecture, I asked the students to determine whether several expressions would likely constitute hate speech in the U.K. and Canada. Besides several obvious examples of hate speech, students noted correctly that the line “Hitler was right!,” which was a BBC reporter’s Twitter post in response to the Israel–Palestinian conflict, was borderline hate speech, as it indicated that the Holocaust was morally justified, hence essentially only one step away from an incitement of genocide of the Jews.

However, regarding the case where an individual expressed his personal disapproval and hatred of his Jewish colleagues (as in “I have had several Jewish colleagues. They are bad workers and I hate them!”), the class was torn. Although the statement is disgraceful, insensible, and likely reflects the speaker’s immature attitude, it is an expression of personal sentiment toward the speaker’s former and present colleagues rather than the group more generally, and by no means rises to the level of an invocation of genocide or hatred against the group.

At least a few students were not convinced that the statement itself would unlikely constitute hate speech. Their misjudgment and disbelief were likely due to their feeling of disgust toward people expressing such sentiments. One student—of Jewish descent—became very emotional. She said the statement was clearly anti-Jewish. I pointed out that even strong sentiments against any group alone would not suffice. She claimed that the statement would nonetheless be “hurtful” and would “violate the dignity” of the group. I emphasized that dignity plays a relatively small part in the legal landscape of these jurisdictions and no part in their hate speech laws.

While I expected some degree of shock in students’ responses to the cultural and legal differences, I was taken aback by her strong emotional reactions. I clarified to the class that the laws did not reflect my personal preferences, and that what is legal is not necessarily moral: Very often, it is not the case. I even reported the incident to a senior colleague, who thanked me profusely for taking on this challenging topic and assured me that my approach was good. The strong responses might be a good thing, she said, as it showed that the students were truly engaged in the topic—it was exactly what should happen in a classroom. However, that student seemed unable to recover from the shock: In subsequent classes, she asked me why I kept focusing on the bad things that people do to others. Well, I thought, this is a law class, not a travel agency!

I felt doubtful about my approach and considered for a moment that the numerous provocative examples might not even be necessary to help students understand hate speech. In other words, I might have gone too far. The inability of many students to answer a question in the exam completely disproved my suspicion: In reality, I might not have gone far enough. The question is based on a hypothesis about a British company employee who revealed his disapproval of a trans rights campaign in his neighborhood during a casual conversation with two of his colleagues in the workplace. The employee was otherwise highly respectful and professional to all his colleagues. His boss told him that his remarks about the campaign are not protected under British law. The question then asked was why his boss might be correct.

The reason why the remarks about trans rights activism in the workplace might not be protected under British law is that only philosophical—not political—expressions are legally protected in the workplace, and such remarks are likely deemed political rather than philosophical. This British law about workplace expressions was highlighted on one of my lecture slides. However, many students quickly concluded that the expressions would constitute hate speech and therefore would not be protected by British law. This could not be further from the truth: Criticisms of any political movement—or political opinions—alone cannot constitute hate speech under the current laws not only of Britain but also of any Western democracy, let alone those coming from someone who is otherwise respectful and professional to others.

The readiness to conclude something they do not agree with as unlawful and as hate speech reveals an emotionally driven and superficial understanding of hate speech law, which, especially when exhibited in aspiring lawyers, would also pose a risk to democracy and civilization.

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Despite numerous strong arguments against trigger warnings, given the understandably strong emotional responses of some students, certain measures can be taken to improve their learning experiences. Students can be forewarned about the potentially triggering materials and be reassured that the expressions do not reflect the teacher’s opinions but are aimed to make the class realize that certain provocative expressions—or expressions that some people deem to be lacking in moral values—may be lawful in many jurisdictions. In addition, spreading the knowledge that those expressions are lawful cannot, by any stretch of imagination, be taken as a tacit encouragement to say them. Offering a warning before showing the materials would be far more effective than explaining to the students only after they have reacted negatively, as the latter would make the explanations look more like excuses for a mistake committed than part of a sound pedagogical approach.

The above approach still might not help to alleviate the frustration felt by some students, who feel targeted due to their cultural and/or family backgrounds. In that case, the hypotheses can avoid naming the minority groups and instead use “[insert racial/ethnic group]” to replace the specific racial/ethnic group. The students would need to “fill in the blank” to experience the cultural shock, which is pedagogically valuable and would benefit them only in the long run.

The above two approaches both need to be supplemented by proper contextualization of the hypotheses that may be deemed provocative. It would mean that sufficient information needs to be included on the lecture slides, including the reasons for introducing the hypotheses and the intended learning outcomes. Proper contextualization would minimize the chances for any materials to be taken out of context, due to a poor grasp of the teaching materials and/or misunderstanding of what was being taught in class, or, in some rather unfortunate situations, a deliberate twisting of what was being taught in class.

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Teaching hate speech in multiple jurisdictions to students from diverse backgrounds and harboring different expectations and biases can be challenging. It should not dampen the enthusiasm of teachers who are eager to equip students with legal knowledge needed for an international career or deprive students of an opportunity to broaden their horizons. The suggested approaches can help teachers maximize the pedagogical values of provocative and thought-provoking hypotheses that may be shocking to some in the short term but beneficial to all in the long run.