Transcript 10: "hate speech" and incitement

“Hate speech” and incitement
Training workshop on media and
freedom of expression law
“Any propaganda for war shall be prohibited by law.
Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.”
(Article 20, ICCPR)
Since it is a positive obligation on states to
prohibit incitement to hatred, it is no surprise
that states have interpreted the balance
between this and freedom of expression in very
different ways.
However, the Human Rights Committee has said:
“restrictions on expression which may fall within the
scope of Article 20 must also be permissible under
Article 19, paragraph 3, which lays down requirements
for determining whether restrictions on expression are
permissible.”
In other words, this question is determined using the
same three-part test for when other forms of speech
may be restricted.
Was “hate speech” intended to
incite?
Case law usually requires intent.
Jersild case: A journalist broadcast interviews with neoNazi, racist youth. The intention was to expose racist
views, not promote them.
“The punishment of a journalist for assisting in the
dissemination of statements made by another person in an
interview would seriously hamper the contribution of the
press to discussion of matters of public interest and should
not be envisaged unless there are particularly strong reasons
for doing so.” (ECtHR)
Must violence or hatred
actually result?
Incitement is an inchoate (or incomplete) offence –
it does not follow that violence must actually result.
However, the US Supreme Court applies the
strictest test – of “clear and present danger.” A
statement constitutes “hate speech” if it:
“is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action and is
likely to incite or produce such action.” (Brandenburg v.
Ohio)
Ross v. Canada was a case involving a school
teacher who made anti-semitic statements. The
Human Rights Committee said that individuals
have the:
“right to have an education in the public school
system free from bias, prejudice and intolerance.”
Is genocide denial a special
case?
The 1948 Genocide Convention creates a crime
of incitement to genocide (echoed in the Rome
Statute of the International Criminal Court).
In the “media trial”, the International Criminal
Tribunal for Rwanda convicted three journalists.
In cases involving a denial of the Nazi Holocaust,
the ECtHR usually invokes Article 17 of the ECHR
(prohibiting the abuse of the Convention to deny
rights to others).
“Denying crimes against humanity is one of the most
serious forms of racial defamation of Jews and of
incitement to hatred of them.” (Garaudy v. France)
Do you agree?
Religious defamation
Is it possible to defame a religion?
In early cases, the ECtHR used its “margin of
appreciation” to avoid interfering in cases of blasphemy,
which were regarded as matters of public morals best
decided by the country itself.
Later decisions have been more protective of criticism of
religion, and religious leaders and institutions.
Last word to the Human Rights Committee:
“Prohibitions of displays of lack of respect for a religion or other
belief system, including blasphemy laws, are incompatible with the
Covenant, except in the specific circumstances envisaged in article
20, paragraph 2, of the Covenant. Such prohibitions must also
comply with the strict requirements of article 19, paragraph 3, as
well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it
would be impermissible for any such laws to discriminate in favour
of or against one or certain religions or belief systems, or their
adherents over another, or religious believers over non-believers.
Nor would it be permissible for such prohibitions to be used to
prevent or punish criticism of religious leaders or commentary on
religious doctrine and tenets of faith.” (General Comment 34)
Hypothetical case for
discussion
Your country has a law prohibiting denial of the 1915
Armenian genocide. A magazine publishes an article by a
historian arguing that the killings in 1915 did not
constitute genocide, and the discussion of genocide is
actually used to stir anti-Turkish hatred. The author and
the magazine’s editor are convicted under the genocide
denial law.
They take their case to the regional human rights court.
What arguments could each side use and what, in your
opinion, should the court decide?