The Passionate Expression of Hate: Constitutional Protections, Emotional Harm and Comparative Law
64 Pages Posted: 10 Apr 2020
Date Written: 2007
This Article will examine two possible models that seek to resolve the tension in principle: The U.S. model, under which speech enjoys preeminence, and the Israeli model, that protects human dignity as the principal value. Section I will outline and analyze a recent Israeli case that led to the first criminal conviction for the violation of an Israeli statute prohibiting the infliction of harm on religious sentiments. This case will provide a reference point for a three-part comparative analysis of the U.S. and Israeli models. Section II will address the normative infrastructure that separates the two models, Sections III and IV will assess the institutional divergence between the two legal systems, and Sections V and VI will examine consequent doctrinal differences. Moving beyond comparative legal analysis, Section VII will put forward the hypothesis that the source of the difference in jurisprudence arises at least in part out of a different cultural perception regarding the core meaning of "speech" or "expression" in these two jurisdictions. Drawing upon this sociological, or cultural, understanding, Section VIII will suggest that perhaps it is passion, not merely reason, that organizes the realm of public discourse (at least in some jurisdictions and some cultures), and if so, legal doctrine and theory should be modified accordingly. Finally, Section IX will comment briefly on the value (and limits) of comparative law in light of the above understandings.
Keywords: Constitutional Protections, Comparative Law
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