The search for a commonly agreed upon international legal understanding of the meaning of free speech or freedom of expression, as an individual human right, was a major international preoccupation from the 1940s to the 1980s. During the Cold War it was, of course, also a highly ideological debate. There were three positions, broadly speaking: the Soviet Union and its allies, who had little enthusiasm for the idea at all; the United States, which believed in it—many thought—too much; and the rest, the other Western democracies and developing countries, who tried to hold the middle ground. These contrasting positions were most vividly displayed over the question of how to deal with ‘bad’ speech, hate expression, and propaganda for war. The Soviet Union is no more—although, as we shall see, its fingerprints are to be found in the international texts that I will discuss. Post Cold War, however, the positions still remain—that of a good faith but clear difference between the United States and other countries. The United States still privileges free speech, including hate speech, over other values while other countries do not. The robust approach characteristic of the United States was nicely caught in recent civil litigation brought in Idaho by the Southern Poverty Law Center against the Reverend Richard Butler, leader of the Aryan Nations White Supremacist group. In defense to the accusation that his client encouraged violence, Butler's lawyer stated in his pleadings: “[D]emonizing Jews is still legal under the First Amendment. It is still legal in this country to be a bigot. It is still legal to hate. Pastor Butler [therefore] quite properly erects the twin defenses of both free speech and religion contained within the First Amendment.” One new development is that the United States has now ratified or become party to several international human rights conventions that require a very different approach to bigotry and hate. Although, as we shall see, the United States has sought by reservation to contract out of the relevant provisions of these instruments as regards speech, it may not be as simple as that in reality in the longer term. Hate speech is in fact an American expression that has gained international currency although it is also termed hate propaganda elsewhere. Hate speech describes a problematic category of speech and related freedoms, such as freedom of association and assembly, that involves the advocacy of hatred and discrimination against groups on basis of their race, color, ethnicity, religious beliefs, sexual orientation, or other status. It is important to say that there is no difference between the United States and the international human rights standards as regards ends—that is the goal of the control and elimination of hate speech. Hate speech is excoriated in all democratic societies. The differences between countries are over means. How best should society respond to hate speech? How far should we be prepared to suppress it through law and governmental regulation and at what cost to freedom of expression? Is a new international consensus possible now that the United States has joined key international agreements? Why is hate speech a problematic category? The answer is because we are looking at possible conflict between two rights in a democratic society— freedom of speech and freedom from discrimination. Freedom of speech, including freedom of the press, is fundamental to a democracy. If democracy is defined as popular control of the government then unless people are able to express their views freely such control is not possible. It would not be a democratic society. But by the same token, a core element of democracy is the value of political equality. What should a democratic society do when some groups seek to use their freedom of expression to advocate the denial of equality, discrimination, and exclusion of others? What should we do when such groups express hatred and insult their target victims? How does the United States answer those questions and how do other democratic societies answer them? Those are the questions before us.
Hate Speech - The United States Versus the Rest of the World?,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol53/iss2/7