PANACEA UNFOUNDED, PROBLEMS COMPOUNDED: THE PREDICAMENT OF HATE SPEECH LAW AS A RESTRAINT ON FREE SPEECH

Abstract

The freedom of speech is fundamental to democracy and truth in society. Public order, other’s rights and reputation and morals are some grounds for which the right to free speech may be limited under Art 19(3), International Convention of Civil and Political Rights (“ICCPR”). Hate speech laws limit freedom of speech to restrain hate speech. The nature of hate speech is unclear because it is not obvious what recognized category of limitation hate speech falls under and the term “hate speech” has been invoked in many different contexts. Although Article 20(2), ICCPR, is an internationally agreed baseline of hate speech law, domestic state practice has diverged from it. This is because a jurisdiction’s past history informs whether harms caused by hate speech is conceptualized as harm to dignity, public order, or solidarity. These differences influence how “hate” is conceptualized in legislation and jurisprudence in terms of what kind of hatred is prevented and whether inciteful, offensive or hurtful speech is prohibited. These differences also impact the role of law and tribunals and the emphasis of non-legal methods in addressing hate speech in domestic state practice. While addressing the harms caused by hate speech, the resulting legislation may in substance be a different kind of law that limits free speech with less perceived legitimacy than “hate speech law.” The divergence of hate speech law from the baseline in Article 20(2), ICCPR, threatens democracy and truth in the name of peace and has even resulted in post-truth and anti-democratic legislation in some instances.