Hate Speech Bans: An Intolerant Response to Intolerance

• Author: Stuart Chan
• Position: LLB (Durham), LLM (International Corporate and Commercial Law), (Durham)
• Pages: 77-96

HATE

SPEECH

BANS:

AN

INTOLERANT

RESPONSE

TO

INTOLERANCE

STUART

CHAN*

Any

advocacy

of

national,

racial

or

religious hatred

that

constitutes incitement

to

discrimination,

hostility

or

violence

shall

be

prohibited

by

law

-

Article

20(2)

ICCPR.

This

pronouncement

of

the

International Covenant

on

Civil

and

Political

Rights,I

adopted

by

the

General

Assembly

of

the

United Nations

in

1966,2

ranks

amongst

the

strongest condemnations

of

hate

speech

on

the

international

scene.

Unsurprisingly,

Western

European

states

are

amongst

the

most diligent

adherents

to

the

ICCPR

and

have

all

adopted

domestic

legislative measures

in line

with

Article

20(2)

which

prohibit

various

forms

of

intolerant

"hate"

speech.

3

Nevertheless,

in

spite

of

their

intuitively altruistic

intentions, hate

speech

bans

must

be

recognised

as

a

correlative

and

perpetuating

encroachment

upon

free

speech

rights

and

principles. Consequently,

they

require appropriate

justification.

Article

19(3)

ICCPR,

makes

this

explicit:

[freedom

of

expression] may

therefore

be

subject

to

certain

restrictions,

but these

shall

only

be

such

as

are

provided

by

law

and

are

necessary:

(a)For

respect

of

the

rights

or

reputations

of

others;

(b)For

the

protection

of

national

security

or

of

public

order.

4

In

times

of

fear and

uncertainty,

societies

can

become

increasingly insular

and

less

tolerant.

Even

societies

which

place

great

emphasis

on

the

protection

of

free

speech

can

come

under

strain

when divergent

views

and

cultures

cause

a

clash

of

values.

Hate

speech

bans

are

a

response

to

the

dangers

posed

by

such

societal anger and

intolerance. In

light

of

this

threat

to

public

order,

as

well

as

the

need

to

protect

the

rights

and

freedoms

of

LLB

(Durham),

LLM

(International

Corporate

and

Commercial

Law),

(Durham).

Entered

into

force

on

3

January

1976.

[Hereinafter ICCPR].

2

GA

Res. 2200,

21

UN

GAOR

Supp

(No

16)

at

52-58,

UN

Doc

A/6316

(1966).

3

Against

the global

and

European trend,

the

US

stands

as

a

fierce

dissenter. Under

the

First

Amendment

to

the

US

constitution,

the

Supreme

Court

has struck

down precisely

the

kinds

of

hate

speech

bans

that

international norms require,

for example

RA

V

v

St

Paul

(1992)

505 US

377;

Virginia

v

Black

(2003)

538

US

343.

4

Emphasis

added.

©

2011

Stuart Chan and

Dublin

University

Law

Society

Trinity

College

Law

Review

individuals

within

modern

pluralistic

societies,

hate

speech

bans

can

be

seen

as

a

justifiable

means

of

mitigating

the

symptoms

of

these

intolerances. In short,

they

protect

against

the

harms

that

hate

speech

can

inflict

upon individuals

and

society.

The

aim

of

this

article

is

to

examine

whether

hate

speech

bans

are

an

effective,

and for

that matter

"necessary",

means

of

mitigating

the

dangers

of

hate

speech;

and

thus whether

hate

speech

bans

are

a

justified

limitation

upon

the

values

of

free

speech;

a

presumption

found

in

Article

20(2)

ICCPR.

This article

will

therefore

address two

linked, but

separate

questions.

First

there

is

"The

Question

of

Principle,"

do

hate

speech

bans

which

regulate

the

contents

of

speech

undermine

the

values derived

from

a

commitment

to

freedom

of

expression?

A

positive answer

concludes

discussion.

A

negative answer

does

not,

for

the

legitimacy

of

such

legislation

does

not

necessarily

address

its

effectiveness.

The

second

question

therefore

focuses

on

whether

such

legislation

is

really desirable,

this

is

"The

Question

of

Necessity."

The

answer

to

this

final

question

will

thus

challenge

the

Article

20(2)

ICCPR

presumption.

Before

the

substantive

discussion,

it

is

essential

to

clarify two

points.

First,

the

approach

of

this

article

will

be

normative

in

nature.

This article

is

not

concerned

with

the

intricacies

and

complexities

of

specific

domestic

applications

of

hate

speech

legislation

as

this

will

detract rather

than

enhance

discussion pursuant

to

the

aims

of

this

article.

Secondly,

it

is

conceded

from the

outset

that

the

abolition

of

hate

speech

bans

in

Western

European

states

is

an

unlikely

occurrence.

As

Eric

Heinze

points

out,

many

governments

would

hesitate

before

adopting

controversial

positions

on

norms

that

are

now

well

established

in

international

and

European human

rights

law,

particularly when

they

are

likely

to

see

little

political

advantage

in

doing

so.'

Nevertheless,

if

hate

speech

bans

are

to

remain politically

entrenched

for

the

foreseeable

future,

it

is

important

that their

defects

are

recognised

and

understood

so

that

measures

to address

these deficiencies

can

be

adopted.

The

Question

of

Principle

Freedom

of

expression

is

one

of

the

most

widely

accepted rights

in

the

world today.

Whether

it

has

express

6

or

implied

7

constitutional

status

or

5

Eric

Heinze,

"Viewpoint Absolutism

and Hate Speech" (2006)

69

MLR

543,

at

545.

6

See

the

First

Amendment

of

the

Constitution

of

the

United

States.

See

decisions

of

the

Australian

High

Court

in

Nationwide

News

Pty

Ltd

v

Wills

[1992]

ALJR

658

and

Australian

Capital

Television

Pty Ltd

v

The

Commonwealth

[1992]

ALJR

695.

[Vol.

14

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