Hate Speech v Freedom of Speech: Where is the Line?

Freedom of speech has never been used so much to justify expressions of hatred as today,
especially with the growth of different political ideologies, and discussion of ideas in
newspapers, the press and social media. Freedom of Speech is undoubtedly an
extraordinary right that allows us to freely express our thoughts, ideas, and opinions.
Allows us to communicate freely and bond with others.

Freedom of Speech: Framework and Concept

As far as common sense goes, and sometimes, in certain periods of time and
constitutional texts, freedom of speech is enveloped in a sense of untouchability of
protection against all and any form of restriction, limitation or censorship. It often gives
individuals a sense of impunity: that they can say anything they fancy without
consequences (despite that not being how the law works). With that said, and with the
rise of nationalism, populist parties and the spread of different comments through the
media landscape, it's not a surprise that some end up clashing with some Human and
Constitutional Rights.

In the 17th century, English poet John Milton was the first in history to bring freedom of
speech to the centre of discussion. At a time where the English Parliament actively
censored its population, Milton wrote Areopagítica in 1644 as a protest. He sets out his
opinion: a vision of an England that strives to have open discussions concerning the role
of the State, the Church and the individual.

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in

the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her

and Falsehood grapple; who ever knew Truth put to the worse, in a free and open

encounter?
That can roughly translate to “Who here has ever heard of an open and free discussion
where Truth was defeated?” This way, freedom of thought became the starting point for
a large discussion on individual rights and, thus, their position within the English legal
system. Forty-five years were needed, but finally, in 1689, Freedom of Expression
was juridically recognised for the first time in the Bill of Rights following the
Glorious Revolution (soon, other nations joined as well).

Freedom of expression assumes an important role in the context of

politics, peace and individual autonomy. It is the keeper of a democratic regime where
everyone can have their ideas heard and protected by the State. In particular, through
journalism, which, in its genesis, acted as the vigilante of political power, freedom of
expression allows for inspection and control of government action, holding political
actors accountable. According to Kant, and his idea of the public use of reason, freedom
of expression is fundamental for the establishment of free, open and public discussions
in order to arrive at the truth. Where ideas take place, where civilized and thoughtful
discussion is promoted, violence would cease to be a resource.

Freedom of Speech: an Unlimited Right?

Even though at the beginning it appeared without any kind of restriction or limit, as a
result of state dynamics where a Liberal State prevailed, freedom of expression has been
accumulating some constitutional clauses as a result of the very nature of
human rights. Human rights, including freedom of speech, are not absolute and
unlimited rights. On the contrary, they have restrictions and limitations in
terms of law, thanks to the change in the state dynamics (from a Liberal State to a
Welfare State where the concern with inclusion and anti-discrimination arose) and
the rootedness and primacy of the principle of human dignity. In such a way
that, under the terms presented in the Universal Declaration of Human Rights, it was
drafted and highlighted article 30:
Nothing in this Declaration may be interpreted as implying for any State, group or person

any right to engage in any activity or to perform any act aimed at the destruction of any of

the rights and freedoms set forth herein.

There are two techniques to restrict a right: the technique of the general clause and the

technique of the specific clause:

• The technique of the general clause provides for the limitation/restriction of

fundamental rights and guarantees in a general and abstract way, provided for
in its legal text;

• The technique of the specific clause provides, under the terms of the law, the
limitation of a certain right in a particular way, used in certain specific cases.

Freedom of speech, as a fundamental right to the proper functioning of a democracy, is

itself subject to restrictions of both types, in different legal texts, to safeguard
that same democracy. In fact, a dilemma arises: freedom of speech as a
fundamental right for the proper functioning of democracy where everyone has the right
to express themselves; or limit/restrict expressions that may jeopardize that same
democracy and the other rights?

To explain this constraint, and according to Professor José Carlos Vieira de Andrade, we
must examine three types of limits: immanent limits; direct conflicts of rights; and laws
restricting fundamental rights.

• The first type of limit is within “the boundaries defined by the Constitution
itself”, so one must have in consideration whether or not the right is protected
by the constitution;
 • The second concerns the conflict between two fundamental rights, for example,
the right to freedom of speech and the principle of equality (often in conflict in
the matter of hate speech), a harmonization of both rights should be sought,
within the framework of constitutional texts, not sacrificing the essential
aspects of each one;

• Lastly, restrictive laws, as the name implies, are related to the set of existing
laws that, expressly and unequivocally, restrict, in their parameters,
fundamental rights.

Hate Speech: Framework and Complexity

Hate speech is complex and raises discussions both in the legal department as well as in
common sense. Defining the term is not an easy task and raises several definitions:

“Such discourse presents as a key element the expression of thoughts that disqualifies,

humiliates and inferiors individuals and social groups. This discourse aims to propagate

discrimination towards anyone who might be considered different, either in terms of

ethnicity, sexual orientation, economic condition or your gender, and to promote social

exclusion.”

However, since there is no universal definition.

“Hate speech, manifested in racist, xenophobic, homophobic or misogynist messages and

expressions, aim to discriminate and stigmatize individuals that compose the group to

which these speeches are destined. ”

Here is an example of another definition for hate speech, where, once again, it is evident
that the principle of human dignity, which supports constitutional texts, is called into
question.

It is in post-World War II that the issue of hate speech becomes evident on

a large scale since Adolf Hitler’s speeches incited hatred and violence that
culminated in the extermination of millions of people of the Jewish and Romani communities.In
the political landscape, with a Welfare State concerned with the well-being of its citizens, the State
acts to restrict freedom of expression in cases of discrimination.

The International Covenant on Civil and Political Rights it’s written underlying this
issue in the 19th and 20th articles:

19 Article:

2. Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his
choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.

The difference between opinion and speech hatred could not be more clear
and distinct: an opinion is protected by law by the right to freedom of speech (and
respects the existence of all human beings); whereas expressions of hatred are not
considered opinions and are, therefore, not protected by the right to freedom of
expression.

The European Convention on Human Rights is quite explicit in this matter (Article 10,
2):

The exercise of these freedoms, since it carries with it duties and responsibilities,

may be subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the protection of the reputation

or rights of others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of the judiciary.

Final Thoughts

Hate speech is a controversial phenomenon. Its definition, although containing similar

points regarding the ones presented by national and international political entities, it’s
not universal and, thus, not widely accepted. In fact, and in some cases of Hate Speech,
people don’t even understand how hateful their behaviour/words are towards one group
of people given the belief that they hold the truth. Laws have been passed, and some
States have been made aware of hate-based violence promoted by hateful words; and still,
there is a long way to go in the protection of human rights. The law is clear in some
countries, and missing in others. In the EU, an effort has been made to pass laws and
guidelines for countries to fix this problem.

Yet, they struggle to properly implement them.

In shorts words, and on a personal note, it can be put in the words of Alicia Tweddle: “I Will
Respect Your Opinion As Long As Your Opinion Doesn’t Disrespect Anyone Else’s Existence.”