This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Monica Lugato (LUMSA), who co-organized the conference with us, submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:
1. Is ‘hate speech’ legitimately to be excluded from the scope of freedom of expression?Or is it protected speech? How does its admissibility or inadmissibility relate to liberalism? My short answer is that the legal regulation of hate speech is not incompatible with liberalism’s basic assumption about the priority of individual rights and the need to shield them from State interferences; provided an agreement on what ‘hate speech’ is; and provided that limitations to freedom of expression remain the exception to the fundamental right to freedom of expression. The international legal framework on freedom of expression provides a useful point of observation on how and to what extent bans on hate speech may be compatible with liberalism. So, first, I will briefly describe its main components, and then discuss its consequences for the debate on hate speech and liberalism.
2. International law protects freedom of expression, while also prohibiting what is currently called ‘hate speech’. Under art. 20, par. 2, of the ICCPR, Contracting States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under art. 4 of ICERD, Contracting States are required to “declare an offence punishable by law all dissemination of ideas based upon racial superiority or hatred,” incitement to racial discrimination and to acts of violence motivated by race, ethnic origin, and color. According to the same provision, they have to do so with due regard to freedom of expression. So, structurally, speech, or more broadly expression, as characterized in each of the two instruments, is not protected by freedom of expression. However, its legal prohibition has to respect the conditions established by international law for the limitation of freedom of expression: legality, necessity in the interests of enunciated public interests, and proportionality (art. 19 ICCPR).
The European Convention on human rights does not contain a specific provision on ‘hate speech’: its art. 10 protects freedom of expression (par. 1), and sets the conditions under which it can legitimately be restricted by the Contracting States (par. 2). The ECtHR has endorsed the ‘hate speech’ terminology in dealing with manifestations of freedom of speech, that, verbal or non verbal, allegedly stir up and justify violence, hatred, or intolerance. It has ruled that Contracting States can restrict such expression, under the criteria established by art. 10, par. 2: again, legality, necessity in the interests of enunciated public interests, and proportionality. In a few cases, it has held that certain allegedly extreme manifestations of freedom of speech are altogether excluded from the scope of the Convention (under its art. 17, prohibition of abuse of rights), as incompatible ratione materiae with it.
3. The monitoring bodies established by the three treaties have clearly recognized that freedom of expression is among the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. They therefore also affirm that prohibited speech is to be construed as an exception to the rule on freedom of speech. For this reason, any limitations to freedom of expression under art. 10 ECHR, or measures adopted by States to implement art. 20, par. 2, ICCPR and/or art. 4 ICERD, have to remain within strictly defined parameters, have to be convincingly established, are subject to restrictive interpretation, and must not “put in jeopardy the core of right itself.” When the restriction does not satisfy those criteria, therefore, the expression, verbal or otherwise, is protected speech under the general rule. However, the practice of the monitoring bodies is hardly consistent with those standards. One may reasonably ask why.
4. The main hurdle seems to me to be the definitional problem. The texts of articles 20, par. 2, ICCPR and 4 ICERD leave a rather ample space for subjective interpretation, and opinions vary widely on what should be understood as hate speech. In fact, substantial disagreement accompanied their drafting, revealing a more general uncertainty and political controversy on whether and how to tackle allegedly harmful speech. Both art. 20, par. 2, ICCPR and art. 4 ICERD have attracted a significant number of reservations and/or interpretive declarations, aimed at either excluding them altogether from ratification or at accepting to implement them compatibly with freedom of expression as protected in domestic law. Interestingly, these reservations and interpretive declarations came mainly from Western democracies, while the prohibitions were strongly favoured by the then totalitarian States. Today Western democracies – with the notable exception of the USA (at least in its constitutional law) – appear increasingly to favour the limitation of freedom of expression in relation to ‘hate speech’.
The European Court of Human Rights has only recently attempted to define the criteria to identify ‘hate speech’ for the purposes of art. 10 (content, context, manner of the speech, and capacity to harm, all of which are to be considered in their “interplay” and balanced against one another), but only occasionally applying them rigorously. To give just a couple of examples (extremely alarming examples, in my opinion): on the one hand, its treatment of political discourse and discourse on issues of general interest, where it has declared that speech is strongly protected but actually protected it unevenly; and, on the other hand, its differing assessments of denials of genocide, where it has protected speech in some cases, but not in others, notwithstanding its general position according to which historical research and statements on historical issues require heightened protection.
In addition to the lack of a clear definition of hate speech, other complex issues arise that are obstacles to any agreement on how to deal with it legally: lack of a consensus on the benefits of legal regulation of it, internationally or nationally; a profound disagreement on the legal means to counter it effectively, whether criminal, civil, or administrative; the danger stemming from allowing the limitation of offensive, shocking or disturbing speech, in all but the most serious and objectively ascertained cases, that entail effective harm or social evil; the largely different views on the identification of the social evils that the regulation of hate speech is meant to counteract; and how the balance has to be achieved between primary public interests and freedom of expression, which is a public and a private good, “without putting in jeopardy the right itself,” as the leading monitoring bodies regularly assert.
5. What about hate speech being a problem for liberalism? It depends on what we mean by liberalism, because the term encompasses so many different currents of thought. At a most basic level, I would suggest that the legal limitation of freedom of hateful expression is a problem for liberalism: one, because, absent an agreed upon notion of hate speech, it entails substantial risks for one of the fundamental individual freedoms constitutive of liberalism; two, because allowing State limitation of expression has the potential to defy liberalism, as the system founded upon protection of individual liberty from interference by the State; and three, because it has the potential to substantially curb a genuine process of formation of public opinion, which is nurtured by an open exchange of ideas – even (or especially) heterodox or disturbing ones – quintessential to liberal democracies.
It seems to me that the international legal framework briefly described shows how a compromise is possible between the liberal perspective (priority of individual freedom) and the need to ensure protection to the minimum requirements of living together, so as to prevent the excesses of individualism ending up in anarchy or, in our pluralistic societies, in an endless fight for dominance. As we saw, in international law, recognition of fundamental individual freedoms comes with recognition that they can be limited when the protection of primary public interests so requires. It also comes with the recognition that with rights come responsibilities (specifically underlined in the provisions on freedom of expression) that each person has towards others and towards the community as a whole.
The problem remains that the interpretation of the applicable law presently suffers from an excess of subjectivism: progress here must be made in order to ensure a correct balance between freedom of expression and its limitation when its exercise is actually prejudicial.
6. True, it is a fragile equilibrium that is to be sought and a most delicate task ahead for legislatures and courts. These bodies will be called to exercise their functions in good faith, with due regard to both individual and general interests. It must be remembered, in fact, that historically States, including liberal democracies, have targeted freedom of speech to ensure control and dominance of the population and to silence dissent. One may wonder if something similar is happening today, even in non-totalitarian States, where the common core of once shared assumptions and values is no longer common, the social and legal structures holding communities together are weakened, and space is opened up for authoritarianism. One may also ask whether the perceived rise in hateful expression is also due (in addition to the impact of the internet and social media) to the ineffective tackling by the authorities of some of the most serious problems affecting communities, primarily perhaps growing economic inequality, immigration, and environmental issues, generating the kind of frustration that may be one of the genetic causes of the degeneration in expression (beyond the inescapable fact that bad feelings, even hateful feelings, are part and parcel of human nature, making it doubtful that they can be, as such, eliminated through law). Rather than unqualified repression of hate speech, the best response to which may well be not engaging with it, or even counter-speech, it is the preservation of the liberty of the individual while safeguarding the conditions under which living together is ensured, even in deeply pluralistic societies, that should occupy center stage in the debate on the limitations to freedom of expression.