The U.S. First Amendment Versus Freedom of Expression in Other Liberal Democracies and How Each Influenced the Development of International Law on Hate Speech

Abstract

There is a large gap between the American concept and delimitation of the freedom of speech and freedom of press and those of other liberal democracies. Beyond the differences of approach between the United States and most other liberal democracies, each side has tried to influence the concept and interpretation of the freedom of expression in international law. This article attempts to analyze how these two camps have shaped the interpretation of freedom of expression in both international human rights law and international criminal law, particularly with regard to hate speech. While acknowledging that the influence of the United States in the development of freedom of expression in international human rights law seems to have been low compared to that of other liberal democracies, this article highlights how recent developments in international criminal law demonstrate a different trend. Examining how international criminal courts, from the Nuremberg Tribunal to the recently created International Criminal Court, via the ad-hoc tribunals, have tried to interpret the concept and delimitations of the freedom of speech, particularly with regard to hate speech, this article argues that unlike international human rights law, international criminal law seems to more closely follow the American approach to First Amendment jurisprudence. Further, these new developments prove that international human rights law is not correcting the blind spots of international criminal law on hate speech, as some have argued. Rather, hate speech is likely to develop separately in international human rights and international criminal law, the latter more closely following the First Amendment track and the former following that of a majority of other liberal democracies.