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In a flurry of confident pronouncements within an hour of the massacre at a Las Vegas country music festival, conservative commentators and activists linked the perpetrator, Stephen Paddock, to liberal or Islamist influences.

Rush Limbaugh, still the doyen of right-wing talk radio, credited Islamic State with being Paddock’s ideological home, arguing that it was disguised by the liberal media because “for the American left, there is no such thing as militant Islamic terrorism.” Pat Robertson, the socially conservative activist and televangelist, said the shooting stemmed from the news media’s and liberal protesters’ “profound disrespect for our president” and other institutions.

Crossed the line

On the other side of the American culture war, a CBS vice president and legal counsel, Hayley Geftman-Gold, posted a Facebook comment that she was “not even sympathetic” to the victims because “country music fans often are Republican gun toters.” Unlike her right wing opposites, she suffered for her opinion: she was fired from what must have been a lawyer’s dream job.

Should any of these comments − the work of, at most, a few minutes when not that of a few seconds − be the concern of the state? They easily fall into the category of bad taste. Some remarks, especially Geftman-Gold’s sneeringly callous comment – for which she has since apologised – could cause further misery in those seeking to cope with the trauma of injury or loss of someone close to them.

The general opinion, especially in the United States, is that governments should stay out of it. For Washington, the anger such remarks may rouse and the distress they may cause must be endured in deference to the near-absolute right of free speech protected by the First Amendment of the US Constitution.

What it is not

But should we tolerate such verbal brutality? Can it not be “cured?” Do people have to suffer distress because of the voiced prejudices of others who often – as Limbaugh does – make a rich living from their display? There’s a growing faction saying no, and it has reached, at least in Europe, the stage of state action. The European Union Justice Commissioner, Vera Jourova has told the social media giants, such as Facebook and Twitter, that they must eliminate both hate speech and fake news, or face legislation criminalizing them for not doing so. That’s a sweeping statement: unpacking what it might mean in practice takes us deep into an area which should be marked with signs saying: “Danger! Free speech in Peril!”

Fake news is not the same as hate speech, but it can also be used to inflame social tensions. In Italy, the anti-trust chief Giovanni Petruzella has said that EU countries should create government-appointed bodies to remove fake news and even fine the media for violations.

But how is fake news to be distinguished, by either artificial or human intelligence, from true news? It’s a delicate operation, since much news striving to be “true” contains false information, and much fake news has the ring of truth and would take careful investigation to disprove.

In Germany, a new law came into force this month criminalising some digital platforms being used for hate speech. Called, challengingly, the Netzwerkdurchsetzungsgesetz, NetzDG for short, it commands that Facebook and Twitter take down “blatantly illegal” hate speech within 24 hours or, if the offending material is less obviously illegal, in a week – on pain of a fine of up to 50 million euro ($58.6 million).

The problem with it, critics claim, is that it is imprecise about what constitutes hate speech. It merely points to the passage in the German Criminal Code which declares the “defamation of religions, religious and ideological associations” illegal. What is defamation? When is one person’s unbearable insult another’s opinion?

“Sticks and stones may break my bones/But words will never hurt me” has been a comfort of sorts to those who have been the victims of taunting and insult, but modern psychiatry claims it isn’t so.

Lisa Feldman Barrett, professor of psychology at Northeastern University, in a careful parsing of what constitutes harmful speech, argues that “there is a difference between permitting a culture of casual brutality and entertaining an opinion you strongly oppose.

Too much danger

The former is a danger to a civil society (and to our health); the latter is the lifeblood of democracy.” Speech of the first kind, which “bullies and torments,” is “from the perspective of our brain cells… literally a form of violence.”

Put that way, it appears obvious: the speech which harms should be criminalized, as much as a physical assault, and in parts of Europe it is being so. Facebook, Twitter and Google are now under increasing state and public pressure to clean up their sites, to stop posting material that causes more than distress but, apparently, real damage to the brain.

Mr Lloyd co-founded the Reuters Institute for the Study of Journalism at the University of Oxford

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