The sordid origin of hate-speech laws

All western European countries have hate-speech laws. In 2008, the EU adopted a framework decision on "Combating Racism and Xenophobia" that obliged all member states to criminalize certain forms of hate speech. On the other side of the Atlantic, the Supreme Court of the United States has gradually increased and consolidated the protection of hate speech under the First Amendment. The European concept of freedom of expression thus prohibits certain content and viewpoints, whereas, with certain exceptions, the American concept is generally concerned solely with direct incitement likely to result in overt acts of lawlessness.

Yet the origin of hate-speech laws has been largely forgotten. The divergence between the United States and European countries is of comparatively recent origin. In fact, the United States and the vast majority of European (and Western) states were originally opposed to the internationalization of hate-speech laws. European states and the U.S. shared the view that human rights should protect rather than limit freedom of expression.

Rather, the introduction of hate-speech prohibitions into international law was championed in its heyday by the Soviet Union and allies. Their motive was readily apparent. The communist countries sought to exploit such laws to limit free speech.

As Americans, Europeans and others contemplate the dividing line emerging on the extent to which free speech should be limited to criminalize the "defamation of religions" and "Islamophobia," launched by the member states of the Organization of the Islamic Conference (oic) since 1999, they should bear this forgotten history in mind. However well-intended--and its initial proponents were anything but well-intended--the Western acceptance of hate-speech laws severely limits the ability of liberal democracies to counter attempts to broaden the scope of hate-speech laws under international human rights law, with potentially devastating consequences for the preservation of free speech.

Freedom of expression and hate speech

The (nonbinding) universal Declaration of Human Rights m (UDHR) adopted in 1948 does not include an explicit duty to prohibit hate speech. Article 19 simply secures "freedom of opinion and expression." However, the drafting history shows that the issues of hate-speech regulation and restrictions on free speech were frequently discussed. During the negotiation of Article 19, the drafters faced the challenge of whether, and if so to what extent, freedom of expression should tolerate even intolerance. (1) The majority of states favored a robust protection of free speech such as that set out in a U.S. proposal (UN Doc. E/CN.4/21), which read "there shall be freedom of speech, of the press and of expression by any means whatsoever." However, the Soviet Union continuously proposed various amendments aimed at prohibiting expressions of intolerance.

The first UK proposal on the wording of an article aimed at securing freedom of expression recognized, like the Soviet proposal, the possibility for states to limit this right, in the interests of national security, against incitement to violence and disorder and obscene publications, whereas the UK proposal expressed doubts about the possibility of including publications aimed at suppressing human rights. But the UK did recognize a...