Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press, 2017 Forthcoming).
12 Pages Posted: 24 Aug 2017 Last revised: 5 Jan 2018
Date Written: August 19, 2017
Hate speech is perhaps as old as humanity, and remains a widespread phenomenon. However, regulation of hate speech has been extremely controversial from the standpoint of a proportionate balance between non-discrimination and dignity, on the one hand, and freedom of expression, on the other hand. This embedded contradiction explains the divergent approaches within liberal democracies (US, Europe, Japan, etc) and the diversity of views on hate speech in the legal doctrine (liberal, communitarian, critical legal scholarship, etc). Since the second half of the 20th century, states have fostered various mechanisms to counteract hate speech via foremost criminal law, special anti-discrimination and labour laws (in particular, anti-harassment clauses), as well as via media-law provisions. In addition, some newer constitutions (in Latin America, Slovenia, South African Republic) envisage specific clauses meant to prohibit incitement to hatred. This is uncommon in older constitutional texts. Initially prohibition of hate speech was meant exclusively on the grounds of race and ethnicity, while in recent years it has been gradually encompassing other non-discrimination grounds (sex, sexual orientation, disability, etc). A number of states have also regarded genocide denials as a form of hate speech. The recent tendency in law and constitutional doctrine, however, has been to distinguish the negation (and trivialization) of mass atrocities from hate speech. Punitive measures against historical revisionism appear even more troublesome in the light of academic freedom of expression.
Keywords: hate speech, freedom of speech, freedom of expression, genocide denial, harassment
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