Resolving the Tension Between Free Speech and Hate Speech: Assessing the Global Convergence Hypothesis
2016; Oxford University Press; Volume: 26; Issue: 2 Linguagem: Inglês
ISSN
1053-6736
Autores Tópico(s)Freedom of Expression and Defamation
ResumoTABLE OF CONTENTS INTRODUCTION I. THE EVOLUTIONARY INTERPRETATION OF TREATIES II. TEXTUAL ANALYSIS: ROOM FOR CONSISTENCY A. ICERD Article 4: The Freedom From Incitement to Racial Discrimination B. ECHR Article 10: The Freedom of Expression III. EVOLUTIVE INTERPRETATION: IN SEARCH OF GLOBAL CONVERGENCE A. ICERD Article 4 B. ECHR Article 10 1. Article 17: Hate Speech that Destroys Rights and Freedoms 2. Jersild v Denmark: A Catch Twenty-Two a. Article 17 Before Jersild b. Article 17 After Jersild IV. ARTICLE 17: PRODUCING COMPETITION RATHER THAN CONVERGENCE CONCLUSION INTRODUCTION In January 2015 two armed gunman stormed the offices of Charlie Hebdo, a satirical magazine that frequently featured cartoons of the Prophet Muhammad. (1) In the wake of the attack almost two million protestors took to the streets waving pencils in a show of support free expression. (2) But, simultaneously, French authorities cracked down on hate speech (3)--in the week following the attacks alone fifty-four people were arrested violating hate speech laws. (4) Over fifty organizations responded with an open letter condemning increased restrictions on free expression and declaring that [u]nder international law, the right to freedom of expression also protects speech that some may find shocking, offensive or disturbing. (5) Debate about the relationship between the right to freedom of expression and the right to freedom from incitement to racial discrimination is only increasing in the wake of similar attacks in Copenhagen, Denmark (6) and Garland, Texas. (7) The tension between these two rights illustrates a problem that goes to the foundation of international human rights law. Human rights are universal--they are for all persons in all societies. (8) Although a variety of objections have been put to that proposition, (9) it remains a normative pillar of the international human rights movement. The universality of human rights suggests that every individual is entitled to every human right by virtue of his or her personhood. Accordingly, a state should, as a conceptual matter, be able to assure all individuals every human right without compromising any other. Indeed, it would be antithetical to universality if states were forced to secure selective protections because of two rights' mutually exclusive content. Yet, the potential a rights-clash is often glaring, as in the case of the right to freedom of expression and the right to freedom from incitement to racial discrimination. Both rights are secured by treaties. (10) And while the two are not necessarily mutually exclusive, the potential incompatibility is clear. Take, example, the Charlie Hebdo cover depicting the Prophet Muhammad and promising 100 lashes if you don't die of laughter! (11) Because the cover implicitly villainizes Shari'a law it arguably conflicts with the right of Muslim individuals to live free from incitement to racial discrimination. if, however, this statement is protected expression, it would seem impossible a state to both protect Muslim individuals from incitement and, simultaneously, vouchsafe the right to free speech. Scholars have pointed to such conflicts between human rights as a threat to the entrenched vision of basic rights as forming a stable system made up of mutually compatible elements. (12) Some have even voiced concern that such conflicts are intractable. (13) But others have pointed out that incompatibility is avoidable--it is a matter of interpretation. (14) There are a variety of interpretive mechanisms international courts and treaty bodies can employ to avoid or mitigate such conflicts. Statements inciting racial discrimination may be deemed to fall outside the scope of the freedom of expression. In Pavel Ivanov v. Russia, example, the European Court of Human Rights held that pamphlets inciting ethnic hatred toward Jewish people were not protected by the freedom of expression because of their hateful content. …
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