Hate speech laws in modern jurisprudence: in search of a reliable foundation
Alexander Kulnev · Sravnitel noe konstitucionnoe obozrenie · 2023
This article critically examines the rationale behind prohibiting hate speech and the significant harm it causes. Drawing upon concepts from legislation, scholarship, and judicial practice, we identify two prominent models that capture the essence of these concepts. The first model posits that harm resulting from hate speech manifests itself not immediately, but in the future. It attributes the responsibility for this harm to the recipients of the message who, under its influence, engage in illegal acts such as violence or discrimination. The two-step harmfulness model, as we refer to it, presupposes a separate stage of message perception by a listener during the harm-causing process. The second model, in contrast, treats hate speech as directly undermining protected values and the legally established rights of others. Advocates of this model contend that certain words, by their very content, contradict the principles of equality and human dignity. We term this model the a priori approach, as the actual or hypothetical consequences of statements are deemed irrelevant for individual accountability. Taking Germany as a case study, we find that its legislative prohibitions on hate speech, enshrined in national laws, align with the two-step harmfulness model. Attempts to establish the a priori model, specifically through a framework of group insults, have proven to be both overly restrictive of discourse and inconsistent in addressing Holocaust denial. Further, we explore sources advocating for the a priori harmfulness of hate speech. These include hate speech provisions of international human rights documents, which are based on the value of equality, and the writings of contemporary jurists who uphold the prohibition of hate speech based on the concept of human dignity. Upon analyzing the arguments in favor of this position, we conclude that it runs counter to the traditional understanding of principles of freedom of speech, freedom of thought, and democratic principles. In addition, proponents of the a priori model significantly deviate from empirical reality in their arguments. Reviewing the case law of the European Court of Human Rights, we observe that the two-step harmfulness model, despite its inherent limitations, remains the applicable foundation for laws addressing hate speech. Its evaluative nature renders it unsuitable for consistent application. Consequently, accepting this model perpetuates a situation where courts and lawmakers inadvertently make democratic societies’ crucial civil freedoms and public discourse hostages to fortune.