chapter 2 - Stiftung "Erinnerung, Verantwortung und Zukunft"

Otto Böhm
“State Speech – Hate Speech”
The issue of hate speech also has a long and controversial history in the United States. Under US law, a hate
crime is defined as a crime in which the perpetrator targets the victim for his or her perceived membership in
a specific social or ethnic group. Judith Butler has analyzed the concept of hate crimes from a Foucauldian perspective
that explores the subtle relationship between speech and power in juridical discourse, and criticizes
state power from a left-wing standpoint. In a 1997 essay, she argues that “By ‘suspending’ the state action
doctrine, proponents of hate speech prosecution may also suspend a critical understanding of the state power,
relocating that power as the agency and effect of the citizen-subject. Indeed, if hate speech prosecution will
be adjudicated by the state, in the form of judiciary, the state is tacitly figured as a neutral instrument of legal
enforcement.” 26 As a feminist, Butler draws a parallel between the social power to define gender and the
state’s power to define racial identity. Because the state is not a neutral party, she argues, society must take
on the task of confronting racist ideologies. Any attempt to prosecute hate speech will necessarily confront the
productive and definitional power of the state.
Butler’s arguments rest on a particular understanding and skepticism toward the nation state that may be
seen as refuting the concept of the nation state as the protector of human rights. One proponent of this latter
ideal of the nation state was Hannah Arendt. Writing several decades before Butler, Arendt argued that the
destruction of the nation state by totalitarianism would culminate in the destruction of human rights. For
Arendt, therefore, the power of the state is separate from violence; the state does not promote the violence
that exists in society. Quite the contrary: the state can be called on to exercise its power to protect the individual
from social violence. 27 More recent theorists of democracy like Jürgen Habermas and John Rawls, in
turn, have developed nuanced theories of the power of the state, linking state power to constitutional law,
which is seen as an expression of the democratic will of the people. This link generates the requirements and
criteria for legal and state intervention. For these recent democratic theorists, the law is not part of the “state
apparatus,” but functions in tension with other state institutions. In these formulations, the power of the
state – conceived as executive power or the “power to act” – may be used to achieve discriminatory laws or actions,
but it may also be expressed in anti-discriminatory behavior. As the German Institute for Human Rights
has noted, “power is always dependent on context… . The power to act is not fundamentally negative, but can
also be used to protect human rights.” 28
Establishing International Human Rights Norms
Human rights issues are also central to the international lawmaking process, particularly in the area of discrimination.
As noted briefly above, current international law includes numerous anti-discrimination regulations,
ranging from United Nations statutes, to UN resolutions (for example, the 1970s resolutions on apartheid
in South Africa), to the International Convention on the Elimination of All Forms of Discrimination. 29 In
light of the existing international framework, when is it necessary to enact anti-discrimination legislation on
a national level? Pointing to the examples of Rwanda and Yugoslavia, Zimmer stresses that the International
Convention on the Elimination of All Forms of Discrimination permits “no margin of discretion. Racist speech
and actions can be the start of a racist movement within a state” and therefore states must be required to
26 Judith P. Butler, Excitable Speech: A Politics of the Performative (New York and London, 1997): 47.
27 Hannah Arendt, Elemente und Ursprünge totalitärer Herrschaft, vol. 2 (Frankfurt a.M., Berlin and Vienna, 1951).
28 Oliver Trisch, Der Schutz vor Diskriminierung: ein Strukturprinzip der Menschenrechte Unterrichtsmaterialien zur Menschenrechtsbildung (2006): 2.
29 Zimmer, 37ff. and 212ff.
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Stiftung EVZ
HUMAN RIGHTS AND HISTORY: A CHALLENGE FOR EDUCATION