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Coca-Cola Curses: Hate Speech in a Post-Colonial Context
Get PDFHate speech is a contextual phenomenon. What offends or inflames in one context may differ from what incites violence in a different time, place, and cultural landscape. Theories of hate speech, especially Susan Benesch’s concept of “dangerous speech” (hateful speech that incites violence), have focused on the factors that cut across these paradigms. However, the existing scholarship is narrowly focused on situations of mass violence or societal unrest in America or Europe.
This paper discusses how online hate speech may operate differently in a postcolonial context. While hate speech impacts all societies, the global South—Africa in particular—has been sorely understudied. I posit that in postcolonial circumstances, the interaction of multiple cultural contexts and social meanings form concurrent layers of interpretation that are often inaccessible to outsiders. This study expands the concept of online harms by examining the political, social, and cultural dimensions of data-intensive technologies.
The paper’s theories are informed by fieldwork that local partners and I conducted in Kasese, Uganda in 2019–2020, focusing on social unrest and lethal violence in the region following the 2016 elections. The research, completed with assistance from the Berkeley Human Rights Clinic, included examining the background and circumstances of the conflict; investigating social media’s role in the conflict; designing a curriculum around hate speech and disinformation for Ugandan audiences; creating a community-sourced lexicon of hateful terms; and incorporating community-based feedback on proposed strategies for mitigating hate speech and disinformation.
I begin this with a literature review of legal theory around hate speech, with a particular focus on Africa, and then turn to the legal context around hate speech and social media use in Uganda, examining how the social media landscape fueled past conflicts. Then I explain my Kasese fieldwork and the study’s methodology, before describing initial results. I follow with a discussion of applications to industry, specifically how hate speech is defined and treated by Meta’s Facebook, the dominant social media provider in Kasese. It progresses to a discussion of the implications of the study results and legal and policy recommendations for technology companies stemming from these findings.
Importantly, I apply the research findings to expand existing scholarship by proposing a new sixth “hallmark of dangerous speech” to augment Benesch’s paradigm. Adding “calls for geographic exclusion” as a new qualifier for dangerous speech stems from the particular characteristics embodied by postcolonial hate speech. Examples from the Kasese study illustrate how this phenomenon upends platforms’ expectations of hate speech—which may not consider “Coca-Cola bottle” to be an epithet. The application of this new hallmark will create a more inclusive understanding of hate speech in localized contexts.
This paper’s conclusions and questions may challenge platforms that must address hate speech and content moderation at a global scope and scale. It will examine the prevalence and role of social media platforms in Africa, and how these platforms have provided resources and engagement with civil society in these regions
An Appeal to Books
Get PDFThis feels a fit, even urgent, moment to celebrate our books and the role they play vis-à-vis the law, the courts, and the truth.
As this issue goes to print, our nation’s highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court’s majority has doubled down on deciding major constitutional questions based on “history and tradition”—that is, the majority’s understanding of what the nation was like centuries ago. Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke from historians. These actual experts in history observed that the Court’s work fails basic standards for historical analysis and distorts historical facts toward a particular end. This occurs at a time when public confidence in the Supreme Court is at an all-time low, and concern for the spread of misinformation is high and rising
The Geography of Unfreedom
Get PDFA Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept
Beyond More Accurate Algorithms: Takeaways from \u3cem\u3eMcCleskey\u3c/em\u3e Revisited
Get PDFA Review of McCleskey v. Kemp. By Mario Barnes, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 557, 581. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig
Disabling Lawyering: \u3cem\u3eBuck v. Bell\u3c/em\u3e and the Road to a More Inclusive Legal Practice
Get PDFA Review of Demystifying Disability: What to Know, What to Say, and How to Be and Ally. By Emily Ladau and Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell By Paul A. Lombardo
Reforming World Bank Dispute Resolution: ICSID in Context
Get PDFDuring a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) using an evidence-based, historical lens. Rather than distort ICSID’s past to offer cognitive ease, this article uses primary sources to understand dispute resolution at the World Bank and the broader implications for international dispute settlement and alternative dispute resolution. Using an evidence-based, historical lens to promote an accurate understanding of procedural and substantive distinctions, international investment law and international dispute resolution can facilitate accurate, useful, and responsive reform, rather than letting myopia, manipulation, and mismanaged expectations control the future of international dispute settlement
Radical Commons
No full textIssue #1 Winter 2023. Radical Commons is a student-published zine that seeks to create a platform for left-leaning art and writing about law school and the legal field. RadCo is non-academic by design, promoting creative expression, rejecting professionalism, and celebrating the beauty of honest imperfection.
Above all, RadCo gives students the opportunity to publicly voice dissent against the hyper-conservative principles that make up the heart of the U.S. legal system
Unraveling the International Law of Colonialism: Lessons From Australia and the United States
Get PDFIn the 1823 decision of Johnson v. M’Intosh, Chief Justice John Marshall formulated the international law of colonialism. Known as the Doctrine of Discovery, Marshall’s opinion drew on the practices of European nations during the Age of Exploration to legitimize European acquisition of territory owned and occupied by Indigenous peoples. Two centuries later, Johnson—and the international law of colonialism—remains good law throughout the world. In this Article we examine how the Doctrine of Discovery was adapted and applied in Australia and the United States. As Indigenous peoples continue to press for a re-examination of their relationships with governments, we also consider whether and how the international law of colonialism has been mitigated or unraveled in these two countries. While we find that the Doctrine lingers, close examination provides several important lessons for all Indigenous nations and governments burdened by colonization
The Dark Matter of Federal Indian Law: The Duty of Protection
No full textThe United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, an international customary law doctrine in which a larger, stronger sovereign, America in this case, agrees to “protect” the small, weaker sovereign, in this case, tribal nations. America agreed to this in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection. What tribal nations have received so far is a pittance compared to the value of their consideration. Justice Gorsuch has noted that tribal nations in Washington gave up millions of acres in exchange for “promises.” Those promises must mean something. I call those promises the dark matter of federal Indian law. The duty of protection owed by the United States to tribal nations is much like dark matter. The agreements that established a sovereign-to-sovereign relationship provided for specific details about that relationship. But most agreements are sparse, leaving open most of the details. That’s the dark matter of Indian law. This Article argues that this duty of protection is law and that the judiciary has an obligation to enforce aspects of the duty of protection as understood by both tribal nations and Congress. The Article begins by describing this duty as understood by tribal nations at the time of the origination of the duty and now. The Article then turns to how Congress and the Department of the Interior understand this duty, at least since the start of the tribal self-determination era in the 1970s, and how the Department of Justice often undermines that understanding. Then, the Article explains that the dark matter of federal Indian law is the duty of protection, that the federal obligations to tribal nations and individual Indians is real, and that the duty of protection is enforceable. Finally, the Article shows how the United Nations Declaration of the Rights of Indigenous Peoples is a useful tool judges can use in adjudicating the scope of the unstated parts of the duty of protection
Armor or Withdraw? Likely Litigation and Potential Adjudication of Shoreland Conflicts Along Michigan\u27s Shifting Great Lake Coasts
Get PDFMichigan enjoys along its inland seas, the Laurentian Great Lakes, one of the longest coastlines in the U.S. Much of that shoreline is privately owned. Because of a confluence of development pressures and irrepressible physical dynamics, growing numbers of Great Lakes shoreland properties, built on shifting sandy shores, are at heightened risk of loss from coastal storm surge, inundation, erosion, and shoreline recession. In response, property owners are installing extensive hardened shoreline armoring structures like seawalls and revetments to arrest those erosional processes. Those structures, however, will substantially impair, if not ultimately destroy, the state’s natural coastal beaches and other shoreland resources, as well as accelerate erosion of neighboring shoreland properties.
The clash of imperatives to protect shoreland properties versus conserve coastal resources signifies a wicked dilemma the State cannot avoid: armor or withdraw? More precisely, should we allow the armoring of Michigan’s Great Lakes shorelines in an attempt to fix in place shoreland properties, at great and ongoing private and public expense, and ultimately risk the loss of public trust resources? Or should we allow—and should we compel shoreland property owners to allow—natural processes to proceed, even though doing so will increase the rate at which privately owned shorelands naturally convert into state-owned submerged bottomlands? We cannot hope to simultaneously protect both the beach and the beach house along naturally receding Great Lakes shorelines; we must choose which interest to prioritize first, recognizing the cost of doing so by losing the other.
In addition to the complex physical dynamics at play along Michigan’s Great Lakes coasts, there are evolving legal complexities as well. The State, as sovereign, enjoys police power authorities that encompass coastal shoreland management. The State has also long recognized the applicability of the public trust doctrine to its Great Lakes shores, and its constitution mandates the protection of natural resources. This article first analyzes current Michigan law to determine how those doctrines and mandates apply to Great Lakes shoreline armoring, particularly in terms of what to prioritize. Based on that assessment, we conclude that Michigan’s courts, legislature, and people have consistently and clearly prioritized protecting and conserving Great Lakes natural coastal resources above developing or impairing them for private use, except when such development truly serves larger public trust interests. In contrast, the administrative rules now used to execute those protections prioritize protecting the private beach house first, even at the expense of destroying the natural beach and impairing other public trust interests. This administrative approach was not inevitable— indeed it may be unlawful—and it has created strong expectations on the part of shoreland property owners, heightening the likelihood of litigation.
The article then analyzes current Michigan law to determine how the courts might resolve disputes between property owners hoping to armor the shore and State or local constraints on such armoring. Here we find that while the Michigan courts have resolved a number of key questions regarding coastal shorelands, there is no caselaw addressing directly the lawfulness of shoreline armoring. Based on our review of relevant caselaw, we conclude the courts are not likely to find that the State lacks authority to regulate—or prohibit altogether—shoreline armoring to protect coastal resources. There is conflicting caselaw, however, upon which the courts could rely to find either that the current regulatory regime provides adequate protection of coastal resources, or alternatively that it is deficient. Finally, beyond questions of regulatory authority, the courts are not likely to find that reinvigorated regulatory efforts to prevent the destruction and impairment of public trust coastal resources from armoring—even those resulting in the accelerated loss of private properties—violate constitutional protections, especially if State reforms are undertaken with deliberation and care.
If the courts conclude that current regulatory efforts are lawful and require no greater protection, then Michigan will likely see much of its Great Lakes shorelines armored and its natural coastal beaches destroyed. If they conclude that current regulatory efforts are deficient (or if they approve of reinvigorated protection efforts), however, then private shoreland properties may be lost to the lakes. Such losses cannot be avoided forever, especially along naturally receding shorelines, but they might occur sooner than would happen absent attempts to arrest shoreline erosion with armoring. As with most wicked policy dilemmas, the best response may not be at either extreme—always armor or always withdraw—but somewhere in between. Crafting that hybrid approach, and the appropriate rules for applying it, will be the most challenging course to navigate