Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
Panel Theme:
Current Challenges to Freedom of Expression
Paper Title:
Hate Speech as an Ever-Formidable Challenge to Freedom of
Expression
Author:
Uladzislau Belavusau
1. “Hate speech describes a problematic category of speech and related freedoms, such
as freedom of association and assembly, that involves the advocacy of hatred and
discrimination against groups on basis of their race, color, ethnicity, religious believes,
sexual orientation, or other status” – E. HEINZE,
“Viewpoint Absolutism and Hate Speech”, Modern Law Review, 69, 2006. 558.
The starting point of my presentation is the acknowledgement of the fundamental conflict
in the appraisal of hate speech in the jurisprudence of the U.S. Supreme Court,
motivated by the overwhelming safeguard of the market of ideas, and the European
Court of Human Rights, informed implicitly by the tragic experience of the World War II
and explicitly by a stronger believe in a non-discrimination rationale. Therefore, the goal
of the paper is to set a relevant appraisal of American and European free speech models
in terms of both case-law and socio-legal practices.
2. Case Law on Hate Speech in the US Supreme Court (_First Amendment):
Beauharnais v. Illinois, 343 U.S. 250 (1952), Brandenburg v. Ohio, 395 U.S. 444 (1969),
Whitney v. California, 247 U.S. 357 (1927), Collin v. Smith, 578 F.2d 1197 (1978),
R.A.V. v. St. Paul, 505 U.S. 377 (1992), Virginia v. Black et al., 538 U.S. 343 (2003).
Case Law on Hate Speech in the European Court of Human Rights (_Article 10
ECHR):
Glimmerveen v. Netherlands, App. Nos. 8348/78 and 8406/78 (1979), EHRR 260,
Kühnen v. Federal Republic of Germany, Application No.12194/86 (1988), Chauvy and
others v. France, No. 64915/01 (2004), Wable v. Austria, No. 24773/94 (2000), Feldek
v. Slovakia, No. 29032/95 (2001), Reports 2001-VIII, Unabhängige Initiative
Informationsvielfalt v. Austria, No. 28525/95 (2002), Reports 2002-I, Soulas and others
v. France, No. 15948/03 (2008), Leroy v. France, No. 36109/03 (2008), Balsyt_Lideikien_ v. Lithuania, No. 72596/01 (2008).
3. Epistemological Difference:
The judicial discourse of the laissez-fair approach to free speech in the US sets a radically
sceptical epistemology. One could translate the dominant doctrine into the following
statements: “There is no truth – but only a competition of ideas. The only thing we call
truth is that one idea is more accepted by the public than another.” Epistemological
skepticism of the Supreme Court allows for nearly all kinds of speech. The right to free
speech is construed first and foremost to protect the speaker. The audience is secondary.
The First Amendment dictum reshapes a value-perception of speaking one of many
truths. The whole epistemology of the marketplace of ideas is contradictory to the
classical European [Cartesian] conception of evidential-truth. Free speech is not about
absolute truth. It is about the competition of truths and the protection of the speaker.
Author: Uladzislau Belavusau
University: European University Institute (Florence, Italy)
Programme: PhD
Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
The contradiction between Strasbourg and Washington free speech case law may be
plausibly explicable if we compare the contemporary regulation of Antitrust Law in the
U.S. (the country-pioneer of competition regulation) and EC Competition Law. The role of
state intervention in these two leading competition systems diverges essentially. The
Union approach on Articles 81, 82 EC turns to be more restrictive than the American one
stemming from Sherman Act. Consequently, marketplace of ideas illustrates an arguably
wider believe in the U.S. that the state is likely to be wrong. Nonetheless, similarly to the
Antitrust Law, the competition of expression(s) is also subject to some limits, developed
by the U.S. Supreme Court. Two doctrines, namely “fighting words” and “clear and
present danger” address these limitations.
There is a higher convention practically in all the European countries on the
inadmissibility of racist expression. Many of them implemented a bulk of national
legislation(s) criminalizing the propaganda of hatred, although the concrete grounds for
that hatred vary. Most of the caseload reaching Strasbourg leaves no doubt that hate
speech does not enjoy the protection of Article 10 (1) of ECHR. It is clear that both public
policy derogation of Article 10 (2) of ECHR and an anti-discrimination defense of Article
14 of ECHR overweight the value of pure l’expression pour l’expression. The justification
may arise only if the counter-measure applied is disproportional (Jersild, Lehideux).
Thus, European judicial epistemology is essentially different from that of marketplace of
ideas. The former declines viewpoint absolutism and the utter skepticism towards
cognition of truth, whereas the latter is inherently skeptical to the very idea that truth
exists and some expression-types may devalue it. The former refers to the victim,
whereas the latter protects the speaker. The former embraces anti-discrimination
arguments whereas the latter aspires to an absolute idolization of free expression.
Contemporary judicial rationality in Europe is based on the Cartesian conception of
evidence. The Cartesian intuition says that speech act with a discrimination message and
illocutionary force needs a serious justification, otherwise it should be restricted. The
European comprehension of freedom of expression is akin to the equal right to speech
but not the absolute demagogy of the speaker. Freedom of expression is an inalienable
part for all the citizens, however it excludes certain types of expression per se. European
judiciary weighs the expression vis-à-vis the mathesis (μαθησις), knowledge, whereas
American epistemology portrays knowledge as the game of ideas. It proclaims that the
absolute cognition is hardly achievable since we never know what the truth is; therefore
absolute free speech should be cherished.
4. Critical Race Theory (CRT)
The emergency of the critical race theory (hereinafter referred to as CRT) traces back to
the mid-1980s when a group of legal scholars of color had produced a body of
scholarship, and a sense of group identity. CRT emphasizes the socially constructed
nature of race, considers judicial conclusions to be the result of the workings of power,
and opposes the continuation of all forms of subordination. It is usually classified as a
branch of critical legal studies concerned with issues of power-discrimination (gender,
color, sexual, etc). The free speech CRT is based on the assumption that particular types
of speech can be vulnerable for minorities. The emotional distress provoked, in
particular, by hate speech utterances is characterized by an offense, uncertainty,
discomfort, and loss of dignity. If the state fails to protect a vulnerable minority from the
hate speech slur, it in fact fails to provide for the security of its citizens. Free speech CRT
targets a severe psychological trauma suffered by members of identifiable groups. The
respective scholars claim that the U.S. Supreme Court is so convinced with the pathos of
Author: Uladzislau Belavusau
University: European University Institute (Florence, Italy)
Programme: PhD
Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
marketplace of ideas that it does not notice a greater impairment of the right to speech
and a danger to national integrity, invoked by the protection of racial segregation
through the First Amendment. Marketplace of ideas is distorted when some group of
citizens are threatened. In this sense, the First Amendment is counterpositioned vis-à-vis
the Fourteenth Amendment (non-discrimination).
5. When Two Epistemologies Meet
Yahoo Saga:
In May 2000 two NGOs, La Ligue contre le racisme et l’antisémitisme and l’Union des
étudiants juifs de France, brought a claim to the French court of the first instance
(Tribunal de grande instance of Paris) against the American Internet company Yahoo.
The case concerned the sale of memorabilia from the Nazi period at an internet auction.
The legal problem at stake is whether French law applies to the allegedly external
situation where yahoo.fr functions as a subsystem of yahoo.com, based in California.
Questions for discussion:
1. Is there a reconciling transatlantic potential for the two dominant western free speech
epistemologies? Are they fully incompatible?
2. Has the CRT chances to be accommodated for the contemporary debate on freedom of
expression in Europe?
3. Considering the new challenges for both Europe and USA, who has more chances to
influence the judges: critical scholars or view-point neutralists?
Author: Uladzislau Belavusau
University: European University Institute (Florence, Italy)
Programme: PhD