There is no universal definition of “hate speech”. A broad definition could be the expression or advocacy of hatred towards a person or a group of persons belonging or not belonging to a nation, religion, gender, colour, “race”, or because of their sexual orientation, disability, etc. The Council of Europe’s Committee of Ministers Recommendation (97) 20 describes it as follows: “all forms of expressions which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”. The prohibition of hate speech is certainly the issue that best characterized the “exceptionalism” of the United States in the realm of freedom of expression.
The major international human rights treaties either permit or require the prohibition of hate speech. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination requires state parties to declare “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination,[…]the provision of any assistance to racist activities” and participation in “organization[…]and propaganda activities, which promote and incite racial discrimination” a criminal offense. Both the International Covenant on Civil and Political Rights (ICCPP) and the American Convention on Human Rights (ACHR) require prohibition of hate speech in a different manner. Article 20 ICCPP is limited to “advocacy of national, racial or religious hatred” whereas article 13(5) ACHR is broader to the extent that it prohibits unlawful advocacy “on any grounds, including those of race, colour, religion, language, or national origin”. Furthermore, article 13(5) prohibits advocacy of hatred only if it constitutes an “incitement to lawless violence or to any other similar illegal action”. The UN Human Rights Committee has ruled several applications challenging convictions for racist speech inadmissible on the grounds that the convictions were consistent with articles 19, 20 and 5 ICCPP (article 5 denies “any right to engage in any activity[…]aimed at the destruction of any of the rights and freedoms” set forth in the Covenant). The European Convention of Human Rights does not require prohibition of hate speech, but nor does it prevent it. In addition, the jurisdictions monitoring compliance with the Convention have been quite obedient to state restrictions targeting hate speech. The Court has emphasized that “it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations” (Jersild v. Denmark, 1994).
Thus hate speech can – and to some extent must – be prohibited under international law. There are two ways of conceiving this restriction of freedom of expression. First, hate speech can be seen as harming its victims and is then equivalent to group libel. In this sense, the jurisdictions controlling the respect of the European Convention have estimated that such a limit to freedom of expression is possible in the framework of article 10 (2) permitting the restriction of free speech to protect the rights of others (See for instance Soulas v. France, 2008).
The other justification for the prohibition of hate speech found in international law is to establish that such an expression is not even protected by the right of freedom of speech. International human rights jurisdictions have largely adopted this approach of exclusion. The judges of Strasbourg have judged some cases on the basis of article 17 forbidding exercising a right guaranteed by the Convention with the aim of destroying the Convention rights. They first mentioned this approach by obiter dictum in 1994 for racist speech (Jersild v. Denmark, § 35) and in 1998 for holocaust denial (Lehideux and Isorni v. France, § 53) and then applied article 17 to the promotion of national-socialism (H., W., P. and K. v. Austria, 1989, among others), to holocaust denial (Garaudy v. France, 2003) or to anti-Muslim hate speech (Norwood v. United Kingdom, 2004). Such hate speeches, the Court said, “undermine the values” of the Convention. The Court estimates that a certain degree of gravity is required for a speech to fall into this category of unprotected speech (Soulas v. France).
The case law of the Supreme Court of the United States strongly diverges from these international standards. A characteristic feature of the American conception of freedom of speech is a strong requirement of neutrality towards the expression of different points of view. A restriction must be content-neutral, meaning that it cannot aim at suppressing an opinion. Whereas the internationally widespread view states that “racism is a crime, not an opinion”, American jurisdictions refuse to treat racism or any kind of hate speech as a particular case. In one famous case, the Seventh Circuit Court of Appeals struck down a policy of Skokie, a municipality crowded mainly with Jews, thousands of them Holocaust survivors, forbidding a Nazi group from demonstrating on its streets (Collin v. Smith, 578 F.2d 1197 (1978)). In 1992 the US Supreme Court held an ordinance forbidding the placement of a symbol on public or private property, (including but not limited to a burning cross or a swastika), with the knowledge that it would arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, unconstitutional. The Court found that this ordinance was content-based, since it applied only to certain “fighting words” based on specific grounds (R.A.V. v. City of St-Paul 505 U.S. 377 (1992)). Therefore the requirement of content-neutrality applies even to “less protected” categories of expression such as fighting words.
This refusal to treat hate speech as a specific point of view also appears in Virginia v. Black (538 U.S. 543 (2003)), where the US Supreme Court held that a state could forbid cross burning when done with an intent to intimidate. In this case, the Court insisted that while cross burning may be prohibited as a particular vehement type of threat, it must be protected when it conveys an opinion of white supremacy without intent to intimidate. The protection of hate speech is the subject of a wide debate among American scholars, a debate which is, one must note, mainly framed as a political issue, even among legal scholars. Opponents of a hate speech prohibition argue that such a measure would result in further free speech restrictions (slippery slope argument), and that such a prohibition would keep individuals from expressing perfectly protected opinions because of their fear of being prosecuted (chilling effect argument). Proponents of a hate speech prohibition, including a group known as the Critical Race Theory, insist on the harm hate speech causes its targets, and oppose equality to freedom of expression. One subject of disagreement is the possibility of restricting freedom of speech for “group libel”. In 1952, The US Supreme Court ruled that the prohibition of group libel was consistent with the first amendment (Beauharnais v. Illinois, 343 U.S. 252 (1952)). This case has never been explicitly confirmed or overruled in the posterior case law. Therefore proponents of hate speech prohibition argue it is still good law, whereas their opponents contend it is not.
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There is no universal definition of “hate speech”. A broad definition could be the expression or advocacy of hatred towards a person or a group of persons belonging or not belonging to a nation, religion, gender, colour, “race”, or because of their sexual orientation, disability, etc. The Council of Europe’s Committee of Ministers Recommendation (97) 20 describes it as follows: “all forms of expressions which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”. The prohibition of hate speech is certainly the issue that best characterized the “exceptionalism” of the United States in the realm of freedom of expression.
The major international human rights treaties either permit or require the prohibition of hate speech. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination requires state parties to declare “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination,[…]the provision of any assistance to racist activities” and participation in “organization[…]and propaganda activities, which promote and incite racial discrimination” a criminal offense. Both the International Covenant on Civil and Political Rights (ICCPP) and the American Convention on Human Rights (ACHR) require prohibition of hate speech in a different manner. Article 20 ICCPP is limited to “advocacy of national, racial or religious hatred” whereas article 13(5) ACHR is broader to the extent that it prohibits unlawful advocacy “on any grounds, including those of race, colour, religion, language, or national origin”. Furthermore, article 13(5) prohibits advocacy of hatred only if it constitutes an “incitement to lawless violence or to any other similar illegal action”. The UN Human Rights Committee has ruled several applications challenging convictions for racist speech inadmissible on the grounds that the convictions were consistent with articles 19, 20 and 5 ICCPP (article 5 denies “any right to engage in any activity[…]aimed at the destruction of any of the rights and freedoms” set forth in the Covenant). The European Convention of Human Rights does not require prohibition of hate speech, but nor does it prevent it. In addition, the jurisdictions monitoring compliance with the Convention have been quite obedient to state restrictions targeting hate speech. The Court has emphasized that “it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations” (Jersild v. Denmark, 1994).
Thus hate speech can – and to some extent must – be prohibited under international law. There are two ways of conceiving this restriction of freedom of expression. First, hate speech can be seen as harming its victims and is then equivalent to group libel. In this sense, the jurisdictions controlling the respect of the European Convention have estimated that such a limit to freedom of expression is possible in the framework of article 10 (2) permitting the restriction of free speech to protect the rights of others (See for instance Soulas v. France, 2008).
The other justification for the prohibition of hate speech found in international law is to establish that such an expression is not even protected by the right of freedom of speech. International human rights jurisdictions have largely adopted this approach of exclusion. The judges of Strasbourg have judged some cases on the basis of article 17 forbidding exercising a right guaranteed by the Convention with the aim of destroying the Convention rights. They first mentioned this approach by obiter dictum in 1994 for racist speech (Jersild v. Denmark, § 35) and in 1998 for holocaust denial (Lehideux and Isorni v. France, § 53) and then applied article 17 to the promotion of national-socialism (H., W., P. and K. v. Austria, 1989, among others), to holocaust denial (Garaudy v. France, 2003) or to anti-Muslim hate speech (Norwood v. United Kingdom, 2004). Such hate speeches, the Court said, “undermine the values” of the Convention. The Court estimates that a certain degree of gravity is required for a speech to fall into this category of unprotected speech (Soulas v. France).
The case law of the Supreme Court of the United States strongly diverges from these international standards. A characteristic feature of the American conception of freedom of speech is a strong requirement of neutrality towards the expression of different points of view. A restriction must be content-neutral, meaning that it cannot aim at suppressing an opinion. Whereas the internationally widespread view states that “racism is a crime, not an opinion”, American jurisdictions refuse to treat racism or any kind of hate speech as a particular case. In one famous case, the Seventh Circuit Court of Appeals struck down a policy of Skokie, a municipality crowded mainly with Jews, thousands of them Holocaust survivors, forbidding a Nazi group from demonstrating on its streets (Collin v. Smith, 578 F.2d 1197 (1978)). In 1992 the US Supreme Court held an ordinance forbidding the placement of a symbol on public or private property, (including but not limited to a burning cross or a swastika), with the knowledge that it would arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, unconstitutional. The Court found that this ordinance was content-based, since it applied only to certain “fighting words” based on specific grounds (R.A.V. v. City of St-Paul 505 U.S. 377 (1992)). Therefore the requirement of content-neutrality applies even to “less protected” categories of expression such as fighting words.
This refusal to treat hate speech as a specific point of view also appears in Virginia v. Black (538 U.S. 543 (2003)), where the US Supreme Court held that a state could forbid cross burning when done with an intent to intimidate. In this case, the Court insisted that while cross burning may be prohibited as a particular vehement type of threat, it must be protected when it conveys an opinion of white supremacy without intent to intimidate. The protection of hate speech is the subject of a wide debate among American scholars, a debate which is, one must note, mainly framed as a political issue, even among legal scholars. Opponents of a hate speech prohibition argue that such a measure would result in further free speech restrictions (slippery slope argument), and that such a prohibition would keep individuals from expressing perfectly protected opinions because of their fear of being prosecuted (chilling effect argument). Proponents of a hate speech prohibition, including a group known as the Critical Race Theory, insist on the harm hate speech causes its targets, and oppose equality to freedom of expression. One subject of disagreement is the possibility of restricting freedom of speech for “group libel”. In 1952, The US Supreme Court ruled that the prohibition of group libel was consistent with the first amendment (Beauharnais v. Illinois, 343 U.S. 252 (1952)). This case has never been explicitly confirmed or overruled in the posterior case law. Therefore proponents of hate speech prohibition argue it is still good law, whereas their opponents contend it is not.
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