European Hate Speech Laws
Since the end of World War II, many European countries have witnessed a proliferation of hate speech legislation designed to curb incitement to racial and religious hatred. Though originally intended to guard against the kind of xenophobic and anti-Semitic propaganda that gave rise to the Holocaust, today, national hate speech laws have increasingly been invoked to criminalize speech that is merely deemed insulting to one's race, ethnicity, religion, or nationality. Under the guise of tolerance and co-existence, Islamists have often manipulated such laws in a bid to monopolize debate and define what is beyond the pale of permissible public discussion.
In large part, the movement to circumscribe the bounds of free expression has its roots in three instruments of international law—the European Convention on Human Rights (ECHR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the International Covenant on Civil and Political Rights (ICCPR). Article 10 of the ECHR, for example, grants the freedom of expression to all, but the exercise of this right is conditioned on conformity with the restrictions necessary, inter alia, "for the protection of the reputation and rights of others." The CERD and ICCPR, which also purport to recognize the freedom of expression, go a step further. Article 4(a) of the CERD obligates signatories to make "all dissemination of ideas based on racial superiority or hatred" a punishable offense, while Article 20 of the ICCPR requires outlawing "any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence."
Given the nebulous standards on which much of Europe's hate speech laws are based—indeed, there is not even a universally agreed upon definition for what constitutes hate speech—it is little wonder that such legislation has ensnared speech it was likely never meant to punish. Delineating the line between speech that is considered rude and that which is considered insulting for the purposes of criminal prosecution is an utterly subjective undertaking, and a distinction that governments are ill-suited to determine. Compounding the problem of these laws' arbitrariness is their selective application: while European authorities have at times appeared reluctant to go after Islamist firebrands spouting hatred, those engaging in legitimate debate about Islamism are frequently targeted for prosecution. Examples abound:
The Legal Project has tracked the challenges posed by Europe's national hate speech laws to free speech, educating policymakers and the general public about the danger through op-ed articles, speeches, and blog commentary. The Legal Project has also worked to inform the legal community about the problem through its new Continuing Legal Education course, Suing the Messenger: The Misuse of Law to Suppress Free Speech Regarding Terrorism, Radical Islam and Related Topics.
Jacob Mchangama – "Censorship as Tolerance" – How Europe's raft of hate speech laws are eroding free speech protections.
Christopher Orlet – "Insult to Injury" – Why European hate speech legislation makes for bad law.
Council of Europe – "Fact Sheet on Hate Speech" – A brief explanation of the Council of Europe's approach to hate speech regulation.
Gerard Alexander – "Illiberal Europe" – Why the increase in anti-Nazi speech laws in Europe has impoverished even mainstream political debate.
John C. Knechtle – "Holocaust Denial and the Concept of Dignity in the European Union" – A Florida State University law review article on the European approach to hate speech, and why the European Union's 2007 Framework Decision on Racism and Xenophobia does not provide an antidote.
Council of Europe – "Legal Measures to Combat Racism and Intolerance in the Member States of the Council of Europe" – A link to a compilation of reports on Europe's national hate speech laws.
Council of Europe – "Protocol to the Convention on Cyber Crime, Related to the Prosecution of Acts of Racist and Xenophobic Nature through Computer Systems" – The text of the 2003 protocol criminalizing hate speech on the Internet.
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