chapter 2 - Stiftung "Erinnerung, Verantwortung und Zukunft"

Otto Böhm
FREEDOM OF EXPRESSION AS
A HUMAN RIGHT:
THE ROLE OF HATE SPEECH IN
THE PUBLIC SPHERE
Prohibitions against discrimination are one of the centerpieces of human rights. Indeed, our contemporary international
human rights framework owes much to the struggle against racial discrimination across the globe.
However, as Heiner Bielefeldt has noted, “Anti-racism was not intrinsic to the human rights agenda from the
start, at least not explicitly.” 1 On closer examination, human rights progress in the area of anti-discrimination
has often been uneven and contradictory, shaped by the interaction between universal norms and concrete
historical developments. Within this context, a central dilemma has been the ongoing tension between freedom
of expression and the limits placed on this freedom in the name of combating racial incitement. Most
countries view racism and hate speech as morally reprehensible, and they are as such subject to legal sanctions
in many nations. In Germany, for example, racial discrimination has become less overt and openly racist
remarks are rarely heard in public speech as a result. However, the ongoing effort to eliminate hate speech in
the public sphere continues to impose limits on the freedom of expression, a key human right that is traditionally
construed as unlimited in scope. The recent trend for individuals and groups to invoke freedom of expression
in the defense of their right to disseminate racist propaganda further complicates this picture.
Prohibitions on discrimination are rooted in the protection of human rights and dignity for all. From the human
rights perspective, freedom of expression and the avoidance of discrimination and racism are not inherently
contradictory concepts. In fact, robust anti-discrimination policies support and protect individual
freedom, while racist ideologies undermine freedom, subjugating individual freedom to the needs of the collective.
Indeed, as the German Institute for Human Rights has argued, “all human rights – whether freedom of
religion, freedom of expression, the basic rights to justice, the right to an education or the right to participation
in the labor market – are always grounded in the ideal of human equality and anti-discrimination.” 2
In what follows, I will elucidate various points of tension between freedom of speech and anti-discrimination.
Anja Zimmer’s Hate Speech im Völkerrecht describes the debates surrounding hate speech and racist acts as
1 Heiner Bielefeldt, “Rassismusbekämpfung im Streit der internationalen Menschenrechtspolitik,” in Policy Paper No. 13 of the Deutschen Instituts für
Menschenrechte (2009): 4, accessed Nov. 25, 1009 from http://files.institut-fuer-menschenrechte.de/488/d89_v1_file_49c23ff23902d_PP_Rassismus
bekaempfung_Maerz_2009.pdf.
2 Petra Follmar-Otto and Hendrik Cremer, “Der Nationale Aktionsplan der Bundesrepublik Deutschland gegen Rassismus - Stellungnahme und Empfehlungen,”
Policy Paper No. 12 of the Deutschen Instituts für Menschenrechte (2009): 5, accessed on Nov. 25, 2009 from http://www.institut-fuermenschenrechte.de/uploads/tx_commerce/policy_paper_12_der_nationale_aktionsplan_der_bundesrepublik_deutschland_gegen_rassismus.pdf.
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Stiftung EVZ
HUMAN RIGHTS AND HISTORY: A CHALLENGE FOR EDUCATION