“Hate speech has been a precursor to atrocities, including genocide, from Rwanda to Bosnia and Cambodia” 1. Council of Europe, Recommendation on hate speech, 1997, RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 20 The Supreme Court struck down laws that restricted offensive speech, such as the wearing of swastikas in Village of Skokie v. National Socialist Party of America. But in Virginia v. Black, the Supreme Court refused to rule that burning crosses was First Amendment-protected expressive speech if such activity was intended to intimidate, on the grounds that it could sometimes pose a “real threat.” (Photo of men and women of the Ku Klux Klan during a cross-illumination in 2005 via Wikimedia Commons, CC BY-SA 3.0) The Rabat Plan is the result of a series of expert workshops organized by the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Rabat, Morocco, in 2012. It contains recommendations to distinguish between freedom of expression and incitement to hatred, in particular to provide guidance on the implementation of Article 20 of the ICCPR. The Rabat Plan provided for a 6-part threshold criterion to reach consensus on this distinction, taking into account the context, the speaker, the intent, the content of the speech, its scope and the likelihood of harm. The Rabat Plan is used by international, regional and national authorities to assess incitement to hatred. 2. “Hate speech”, which may be prohibited if it meets the threefold test set out in Article 19(3) of the ICCPR: (a) provided by law; (b) pursue a legitimate aim; and (c) must be necessary in a democratic society. In 2019, the United Nations published the United Nations Strategy and Plan of Action against Hate Speech (UNSPAHS) in response to the growing levels of hatred, xenophobia and racism around the world.
UN Secretary-General Antonio Guterres acknowledged that “hatred is spreading.” The plan proposes a two-pronged approach to countering hate speech: addressing root causes and enabling the UN to respond effectively to the impact on societies. It contains 12 commitments, including support for victims, engagement with new media and the use of education to prevent hate speech. The under-reporting of hate speech and hate-motivated violence is another unfortunate feature of both phenomena. Victims rarely report incidents to authorities, for fear of reprisals or because they lack confidence in the justice system. This contributes to a lack of data, making it difficult to quantify the extent of the problem and take effective action to address it. ECRI recommends that States provide concrete support to victims of hate speech and violence: they should be informed of their right to compensation through administrative, civil and criminal procedures and encouraged to report to the authorities and receive legal and psychological support. For example, Mari Matsuda, a law professor at Georgetown University, has advocated the creation of a legal doctrine that defines contemptuous hate speech on the basis of cases where the message is racial inferiority, the message is directed against a historically oppressed group, and the message tends to persecute or be hateful and degrading. Aware of the dangerous link between hate speech and violence, ECRI has consistently maintained that a criminal prohibition is necessary when hate speech publicly incites violence against individuals or groups of people. At the same time, criminal sanctions must be used as a last resort, and a balance must always be maintained between combating hate speech on the one hand and protecting freedom of expression on the other. Any restriction on hate speech should not be misused to silence minorities and suppress criticism of official policies, political opposition or religious beliefs.
Volokh, Eugene. “The Supreme Court unanimously affirms that there is no exception to the First Amendment for `hate speech.`” The Washington Post, June 19, 2017. Both the Holocaust and the Rwandan genocide show how hate speech can fuel genocide. In current and recent crises such as the Anglophone crisis in Cameroon and the treatment of Rohingya Muslims in Myanmar, hate speech has expressed deep-rooted prejudice and discrimination. It preceded and accompanied hate crimes and mass atrocities. In 2014, the United Nations established a framework for analyzing atrocities, stating that atrocities “are not spontaneous or isolated events; These are processes with stories, precursors and triggers. The framework focuses on atrocity prevention by identifying a number of risk factors. These include “enabling circumstances,” which include “inflammatory rhetoric, propaganda campaigns or hate speech,” as well as “triggers,” some of which include “hate or hate propaganda against specific groups or individuals.” The scientific debate on the regulation of hate speech erupted in the late 1980s, focusing mainly on campus language codes, pitting those who see the regulation of hate speech as a necessary step towards social equality against those who see the regulation of hate speech as an infringement of the fundamental right to freedom of expression. The most serious types of hate speech that can be adequately prosecuted include “incitement to genocide” and particularly severe forms of “discriminatory hate speech that constitutes incitement to violence, hostility or discrimination.” In these cases, “hate speech” can also be the act of expression itself, which is criminalized. On the other hand, “hate speech” may not be an element of a “hate crime.” There is no consensus on a definition of “hate speech” in international human rights law. The Camden Principles were developed in 2009 by the NGO Article 19 to examine the relationship between freedom of expression and the promotion of equality.
They stressed the global need for international consensus on these relations. The Camden Principles recognize that restrictions on freedom of expression can target disadvantaged groups, which can compromise their access to equality. They also stress the need to prohibit certain expressions, such as racial hatred, in order to ensure equality and prevent discrimination. Overall, Camden`s principles hold that the two are mutually supportive, and too much emphasis has been placed on the conflict between them. They argue that while there should be bans on speech, they should be subject to strict restrictions to prevent abuse of rights. Proponents of regulating hate speech generally do so from the perspective of critical racial theory, believing that legal decisions are based on safeguarding the interests of the powerful and see no point in protecting biased speech against certain already oppressed groups. They question the need and logic of protecting speech, which not only has no social value, but also harms minorities socially and psychologically. These proponents of regulating hate speech propose a new balance between freedom of expression and social equality.
The terms “hate speech” and “hate crime” are often merged and used interchangeably, but they must be distinguished. Both are symptomatic of intolerance and prejudice, but while any “hate speech” is a cause for concern, it will not always be a criminal offence. States are obliged to prohibit serious forms of “hate speech”, including through criminal, civil and administrative measures. The Illinois Supreme Court considered the issue of restricting a Nazi assembly in Village of Skokie v. National Socialist Party of America (1978). The Court, which relied heavily on a U.S. Supreme Court case, Cohen v. California (1971), raised the slippery slope argument, arguing that restricting the wearing of a swastika would result in an infinite number of restrictions on all sorts of offensive speech.
