Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States

74 Pages Posted: 24 Feb 2014 Last revised: 17 Mar 2014

See all articles by Ioanna Tourkochoriti

Ioanna Tourkochoriti

Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: February 23, 2014

Abstract

The 2011 legislative proposal by the French Government to criminalize denial of the Armenian Genocide — and the legislation’s invalidation by the French Constitutional Council on rule of law grounds without seriously addressing the free speech concerns underlying the case — raised once more the question of the limits of hate speech protection and of political tolerance in a democratic society. Is it legitimate for the state to intervene in order to protect its citizens from offensive speech or from the danger of arriving at erroneous opinions? Hate speech manifests itself today in various forms, but in general, European law is more restrictive of hate speech than U.S. law. This Article presents the different legal responses in Europe and the United States and evaluates them. Whereas most analysts take an "all or nothing" approach to these issues — believing that, if limits are placed on hate speech, then those limits should apply broadly to hate speech in all of its manifestations — the analysis in this Article shows why we should distinguish between different types of hate speech for philosophical reasons grounded within liberalism. The Article proposes a philosophical approach that justifies the punishment of group defamation while opposing bans of certain political parties and the criminalization of the contestation of historical facts.

Keywords: First Amendment, Hate Speech, Holocaust Denial, Contestation of Armenian Genocide, Political Party Bans, U.S.A., France, Europe

Suggested Citation

Tourkochoriti, Ioanna, Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States (February 23, 2014). 45 Columbia Human Rights Law Review, 552-622 (2014). Available at SSRN: https://ssrn.com/abstract=2400105

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