Hate Speech

Hate speech is a broad term that is used to identify a great variety of expressions. In general, however, it refers to words or symbols that are offensive, intimidating, or harassing, and/or that incite violence, hatred, or discrimination on the basis of a person's race, religion, gender, sexual orientation, or another distinguishing status. Although hate propaganda is seen as a major societal and political problem, in particular in those countries confronted with racial, ethnic, or religious tension, attempts to suppress hate speech are controversial. At the center of this controversy is the question about the extent to which hate speech restrictions may be reconciled with the right to freedom of expression.

Hate Speech and Freedom of Expression

The right to freedom of expression is an internationally recognized human right. However, freedom of expression is not absolute. Both national constitutions and international conventions allow restrictions on speech to safeguard other societal values. Among human rights lawyers and scholars there is a heated debate as to whether hate speech deserves free speech protection. Both sides offer powerful arguments. Those who favor some form of regulation emphasize the different kinds of harm caused by hate speech, to both the individual person and society as a whole. Expressions of hatred, it is often argued, inflict psychological or even physical injuries on members of the targeted group. These harms include "feelings of humiliation, isolation, and self-hatred" (Delgado, 1982, p. 137). A related rationale for suppressing racist expression is that it advocates discrimination and denies the right to equal protection and treatment. As a mechanism of subordination, it would reinforce the structural discrimination of socially marginal groups. Proponents of regulation also point at the silencing effect of hate speech. Racial or ethnic insults in a face-to-face situation would function as a "preemptive strike," inhibiting members of a targeted group from participating in the marketplace of ideas (Lawrence, 1990, p. 452).

Critics of regulation argue that hate speech laws are inefficient and even counterproductive. Eliminating racist speech "would not effectively address the underlying problem of racism itself, of which racist speech is a symptom" (Strossen, 1990, p. 494). Some authors have submitted that there is no empirical evidence from countries with strict antihate speech laws that censorship is an effective means of fostering tolerance. On the contrary, public proceedings in a court would only provide the offender with the opportunity to further disseminate his or her hateful message. Moreover, censorship would have the effect of making martyrs of those who are suppressed. Arguments against regulation also draw on the more indirect, negative side effects of censorship. For example, it is argued that outlawing speech is a "diversionary approach," which would make it easier for the government to avoid tackling less convenient and more expensive, but ultimately more effective, ways to combat discrimination (Strossen, 1990, p. 561). Another frequently heard argument is that the suppression of hate speech drives racist attitudes underground, which may result in explosions of racist violence at a later time. Finally, a more principled reason for protecting hate speech is that speech restrictions based on their content are unduly paternalistic and violate the principle of personal moral responsibility. According to this view, it is not for the government or the legislature to decide which ideas are false and which ideas people should be allowed to express or can be trusted to hear.

International and Domestic Norms

The last fifty years of the twentieth century witnessed many national and international initiatives to outlaw expressions usually qualified as hate speech. However, the existing hate speech regulations differ substantially in regard to the types of expressions prohibited and the sanctions involved. The oldest international agreement to outlaw a very specific example of hate speech is the Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention was adopted by the United Nations (UN) in 1948 in the aftermath of the Holocaust. Its Article 3 prohibits "direct and public incitement to commit genocide." In the 1960s the international concern with anti-Semitism, apartheid, and racial discrimination led to the development of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

CERD, adopted by the UN General Assembly on December 21, 1965, and to which 169 states are party, contains the most far-reaching international provisions on the suppression of hate speech. According to Article 4 of this Convention, "the dissemination of ideas based on racial superiority or hatred" and "incitement to racial discrimination" should be declared "punishable by law." The decision to punish the mere dissemination of ideas, without regard to additional requirements such as incitement or the likelihood of subsequent violence, was highly controversial. In order to render Article 4 more acceptable, its introductory paragraph declares that all measures should be enforced "with due regard to the principles embodied in the Universal Declaration of Human Rights," including the right to freedom of expression. The effect of this clause is still subject to debate.

The CERD monitoring body—the Committee on the Elimination of Racial Discrimination—has broadly interpreted Article 4, emphasizing in its General Recommendations VII and XV that the prohibition of dissemination of all ideas based on racial superiority or hatred is compatible with the right to freedom of expression. This view is not shared by several states, some of which have issued reservations or interpretive declarations limiting the impact of Article 4 on domestic free speech guarantees. Another important international provision, framed in more speech-protective language, is Article 20 of the 1966 International Covenant on Civil and Political Rights, which provides that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

In addition to and as a means of implementing these international standards, many countries have adopted laws limiting hate speech. As with the international agreements, these national laws envisage different kinds of expression. Some are rather broadly worded and encompass a great variety of offensive speech (e.g., the laws in France, Germany, Denmark, and the Netherlands); others are more narrowly tailored and require, for instance, incitement and/or the intention to incite hatred, or the likelihood of a breach of peace (e.g., the laws in Canada, Great Britain, and Belgium) (Coliver, 1992).

Striking a Balance

Those committing hate speech crimes have sometimes challenged their convictions under the right to freedom of expression. National and international courts have thus had to review the national norms dealing with hate propaganda and weigh the competing interests at stake. Despite the international agreements global consensus does not exist.

The United States occupies a unique position in the debate. In this country the balance has been largely drawn in favor of freedom of speech. The Supreme Court's usual interpretation of the First Amendment free speech guarantee leaves little room for hate speech regulations. Initially, the Court took a rather deferential stance toward legislation outlawing expressions of hatred. In the case of Beauharnais v. People of the State of Illinois (1952), it upheld a state law that made it a crime to distribute publications with racially or religiously defamatory content. Justice Felix Frankfurter, writing for the majority, analyzed the Illinois statute as prohibiting "group libel," a class of speech not within the area of constitutionally protected speech. Frankfurter conceded that strong arguments against hate speech restrictions exist, but he believed it to be "out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem." Although this decision was never explicitly overruled, it has been thoroughly restricted by subsequent decisions limiting the constitutionality of libel laws in general.

An important step in this evolution was the Supreme Court's refusal to review a federal court's decision invalidating local town ordinances that prohibited the promotion and incitement of racial and religious hatred. One ordinance was designed to prevent a march of a neo-Nazi party in Skokie, Illinois, a town with a large Jewish community, including numerous survivors of the Holocaust. Arguments in favor of hate speech legislation have also drawn on the so-called "fighting words" doctrine. The Supreme Court has decided that fighting words—words "which by their very utterance, inflict injury or tend to incite an immediate breach of the peace"—are not protected by the First Amendment. Some scholars have argued that racist and discriminatory insults would clearly come within the ambit of this definition.

Nevertheless, reliance on the fighting words theory to justify hate speech laws was rendered ineffective by the Supreme Court's decision in R.A.V. v. City of St. Paul (1992). In this case the Court considered the conviction of white teenagers who had burned a cross on the property of a black family. The teenagers were prosecuted under a city ordinance that outlawed hate symbols, "which one knows or has reasonable grounds to know arouses anger, alarm, and resentment in others on the basis of race, color, religion, or gender." The majority ruled that the St. Paul ordinance drew impermissible content-based distinctions by outlawing fighting words, which injure on the basis of just a few categories, such as race and color. In the Court's view the First Amendment does not permit the imposition of special prohibitions on speakers "based on hostility—or favoritism—towards the underlying message expressed."

Critics of the U.S. approach have argued that its absolutist conception of freedom of speech refuses to recognize the competing values of liberty and equality at stake. In Europe the situation is quite different. If the U.S. Constitution could be said to reflect one perspective, the case law under the European Convention on Human Rights would surely represent the opposite side. One of the first European Convention cases to address hate speech regulations was Glimmerveen and Hagenbeek v. The Netherlands (1979). In this case the European Commission on Human Rights considered the convictions of two members of a right-wing political party for possessing leaflets inciting racial discrimination by urging the removal of all nonwhite immigrants from the Netherlands. The Commission declared the applications, based on the right to freedom of expression, inadmissible, relying primarily on Article 17 of the Convention, which prohibits the abuse of Convention rights. In the Commission's view, the applicant's discriminatory immigration policy was contrary to the text and the spirit of the Convention and likely to contribute to the destruction of the rights and freedoms of others.

The Glimmerveen case is illustrative of many subsequent decisions dealing with hate speech legislation. By declaring applications inadmissible on the basis of the "abuse of rights" doctrine, the bodies charged with enforcing the European Convention engage in a rather superficial examination of the circumstances of a case and the extent to which hate speech laws are compatible with the right to freedom of expression. This approach has been confirmed in several cases in which the European Court of Human Rights simply judged on the merits of the case. For example, in Jersild v. Denmark (1994), the Court stated, without further explanation, that "there can be no doubt" that racist remarks insulting to members of the targeted groups do not enjoy the protection of the right to freedom of expression. Although such a deferential attitude may be explained by the European experience with racist regimes in the first half of the twentieth century, it has been subject to criticism, even by those scholars who are generally sympathetic to some form of hate speech regulation.

Between these two extreme positions, courts in other countries have sought to arrive at a more balanced solution of the conflict caused by hate propaganda. The jurisprudence of the Canadian Supreme Court constitutes a good example of this. In Regina v. Keegstra (1990) it upheld a criminal statute prohibiting the communication of statements, other than in private conversation, that wilfully promote hatred against an identifiable group. The Court recognized that the provision interfered with the right to freedom of expression. But, according to the majority, such interference was justified, in regard to, among other things, the negative psychological results of hate propaganda, the importance of values such as equality and multiculturalism, the fact that the provision was narrowly tailored and that the accused was offered a number of defenses. For instance, the Crown had to prove a subjective intention to promote hatred and the likelihood of harm. After its careful analysis, the majority therefore concluded that the benefits of the challenged law outweighed its speech restrictive effects. However, in R. v. Zundel (1992), a case decided two years later, the Court struck down a much more broadly worded statute, which had been used to silence the author of anti-Semitic literature. In the majority's view the law, which prohibited the publication of false statements that cause or are likely to cause injury or mischief to a public interest, could "be abused so as to stifle a broad range of legitimate and valuable speech."

Which approach is preferable? The First Amendment and European Convention jurisprudence has the advantage of being clear in its commitment to either protect or not protect hate speech. The resolution of both systems can no doubt be explained and justified by the particular historical and philosophical backgrounds that characterize U.S. and European societies. The balancing approach, on the other hand, of which the case law of the Canadian Supreme Court is a good example, recognizes the harms resulting from both censoring and not censoring hate speech in terms of free speech and equality. It allows the courts to have regard for the different arguments advanced in favor of and against regulation.

SEE ALSO Incitement

BIBLIOGRAPHY

Brems, Eva (2002). "State Regulation of Xenophobia versus Individual Freedoms: The European View." Journal of Human Rights 1:481–500.

Coliver, Sandra (1992). "Hate Speech Laws: Do They Work?" In Striking a Balance. Hate Speech, Freedom of Expression and Non-Discrimination, ed. S. Coliver, K. Boyle, and F. D'Souza. Essex: International Centre against Censorship and Human Rights Centre, University of Essex.

Delgado, Richard (1982). "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling." Harvard Civil Rights-Civil Liberties Law Review 17:133–181.

Dworkin, Ronald (1996). Freedom's Law. The Moral Reading of the Constitution. Oxford: Oxford University Press.

Gordon, Paul (1992). "Racist Violence: The Expression of Hate in Europe." In Striking a Balance. Hate Speech, Freedom of Expression and Non-Discrimination, ed. S. Coliver, K. Boyle, and F. D'Souza. Essex: International Centre Against Censorship and Human Rights Centre, University of Essex. See Article 19.

Lawrence, Charles R. (1990). "If He Hollers Let Him Go: Regulating Racist Speech on Campus." Duke Law Journal 1990:431–483.

Matsuda, Mari J. (1989). "Public Response to Racist Speech: Considering the Victim's Story." Michigan Law Review 87:2320–2381.

McCrudden, Christopher (1995). "Freedom of Speech and Racial Equality." In Pressing Problems in the Law. Volume 1. Criminal Justice & Human Rights, ed. P. B. H. Birks. Oxford: Oxford University Press.

Partsch, Karl Josef (1992). "Racial Speech and Human Rights: Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination." In Striking a Balance. Hate Speech, Freedom of Expression and Non-Discrimination, ed. S. Coliver, K. Boyle, and F. D'Souza. Essex: International Centre Against Censorship and Human Rights Centre, University of Essex.

Strossen, Nadine (1990). "Regulating Racist Speech on Campus: A Modest Proposal." Duke Law Journal 483–568.

Marc Bossuyt
Stefan Sottiaux