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.