European Hate Speech Laws and their Chilling Effects on the Freedom of Expression
By Kelly Kane
The freedom of speech in the United States is arguably the most coveted right the Constitution grants to its citizens. The freedom of speech, as is protected by the First Amendment, lays the foundation for our democratic society. The freedom of speech combats censorship, and ensures that speech or expressive conduct is not shut down by the government merely because a viewpoint is unpopular or offensive. Citizens of European countries, however, do not enjoy the same unrestricted freedoms as we do in the United States. Although the limitations on freedom of speech stem from legitimate intentions, the far-reaching prohibitions on the freedom of speech run the risk of becoming complete government censorship.
There are several sources of international law that grant European Union citizens the freedom of speech. The European Convention of Human Rights (ECHR) provides that “[e]veryone has the right to freedom of expression.”[1] But the exercise of freedom of expression is subject to restrictions, and may be limited “for the prevention of disorder . . . for the protection of health or morals, [or] for the protection of the reputation of rights of others.”[2] Further, Article 20 of the International Covenant on Civil and Political Rights (ICCPR) prohibits “advocacy of national, racial or religious hatred that constitutes . . . hostility.”[3] This legislation began to take shape after World War II in an effort to combat hate speech, including speech concerning “xenophobic and anti-Semitic propaganda that gave rise to the Holocaust.”[4] This attempt to ban hate speech brings about problems, because there does not seem to be a universally accepted definition of what hate speech is.[5]
In response to the requirements imposed by the ECHR and ICCPR, European countries, such as France and Holland, have enacted laws that criminalize hate speech.[6] France, for example, criminalizes speech that incites racial discrimination or hatred.[7] In Holland, it is a criminal offense to make public, intentional insults on account of a person’s race, religion, or sexual orientation.[8]
I by no means condone or accept xenophobic, racist, or hateful speech of any kind. However, banning hateful speech will not stop the spread of hate. Rather than imposing a ban, we need to change the way people think about those who are different from them, whether it be because of their race, religion, gender, or political affiliation. Changing the way people think requires open discussion and debate. But these prohibitions on speech place a burden on the fundamental right to the freedom of speech, therefore closing the door on the opportunity to engage in a meaningful debate.[9] Further, because of the lack of a universal definition of hate speech, these overbroad laws are difficult to enforce and appear to be a form of government censorship and lead to an oversensitive society.[10]
Consequences of expressing a politically incorrect or offensive viewpoint in European countries include financial penalties and jail time.[11] For example a French judge recently fined John Galliano, a British fashion designer known for his work at Dior, 6000 euros for anti-Semitic remarks he made to a Jewish woman at a bar in Paris.[12] Although Galliano’s comments were disturbing, the court’s decision to impose criminal fines may have a chilling effect on other forms of offensive speech that does not rise to the level of speech that incites violence.
European laws prohibiting hate speech, although aimed to protect minorities and those who are underrepresented in European society, seem to be shaping into a form of government censorship. Rather than banning speech, European governments should aim to promote tolerance and acceptance of different religions, races, sexual orientations, or political affiliations, rather than placing an outright ban that results in an oversensitive and censored society.
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[1] European Convention of Human Rights, Art. 10, secs. 1, 2 (1950) http://www.echr.coe.int/Documents/Convention_ENG.pdf.
[2] European Convention of Human Rights, Art. 10, secs. 1, 2 (1950) http://www.echr.coe.int/Documents/Convention_ENG.pdf.
[3] International Covenant on Civil and Political Rights, Art. 20 (1966) http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
[4] European Hate Speech Laws, The Legal Project http://www.legal-project.org/issues/european-hate-speech-laws.
[5] Roger Kiska, Hate Speech: A Comparison Between the European Court of Human Rights and the United States Supreme Court Jurisprudence, 25Regent University Law Review 107, 108 (2012).
[6] European Hate Speech Laws, The Legal Project http://www.legal-project.org/issues/european-hate-speech-laws.
[7] European Hate Speech Laws, The Legal Project http://www.legal-project.org/issues/european-hate-speech-laws.
[8] European Hate Speech Laws, The Legal Project http://www.legal-project.org/issues/european-hate-speech-laws.
[9] Roger Kiska, Hate Speech: A Comparison Between the European Court of Human Rights and the United States Supreme Court Jurisprudence, 25 Regent University Law Review 107, 112 (2012).
[10] Roger Kiska, Hate Speech: A Comparison Between the European Court of Human Rights and the United States Supreme Court Jurisprudence, 25Regent University Law Review 107, 112 (2012).
[11] Roger Kiska, Hate Speech: A Comparison Between the European Court of Human Rights and the United States Supreme Court Jurisprudence, 25 Regent University Law Review 107, 112 (2012).
[12] Tim Padgett, How John Galliano’s Criminal Conviction Sets a Poor Example for the Developing World, Time (Sept. 13, 2011) http://world.time.com/2011/09/13/how-john-gallianos-criminal-conviction-sets-a-poor-example-for-the-developing-world/.