Volume 4 No 1 - Journal for the Study of Antisemitism

62 JOURNAL FOR THE STUDY OF ANTISEMITISM [ VOL. 4:27
ANTI-HATE SPEECH JURISPRUDENCE AND LEGISLATION: FREEDOM OF
SPEECH VS. FREEDOM FROM DISCRIMINATION
Hate speech is notoriously difficult to define: everything depends on
the content and the context. As a working proposition it may be defined as
propagating ideas and claims of the inferiority of a person or group based
on race, religion, or other comparable traits that threaten or encourage violence—even
if unintentional—against an individual or group. Such speech
generates an atmosphere of intolerance and inequality by employing, it has
been said, “words that are used as weapons to ambush, terrorize, wound,
humiliate, and degrade” not only the person or group attacked but also society
as a whole. Attempts to restrict hate speech date largely from after 1945
and in considerable measure reflect the experience of Nazi propaganda and
efforts to prevent a recurrence. Article 29 of the Universal Declaration of
Human Rights specifies that “In the exercise of his rights and freedoms,
everyone shall be subject only to such limitations as are determined by law
solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.” While this
provision does not specifically call for anti-hate speech laws, it can be
argued and has been argued—as well as the contrary—that Article 29 provides
a basis for such laws as will secure “due recognition and respect for
the rights and freedoms of others.” Article 20 of the 1966 International
Covenant on Civil and Political Rights (ICCPR) provides, perhaps illogically,
a far-reaching exception to the covenant’s ringing guarantees of freedoms
of political speech and expression by requiring signatory states (there
are some 160) to outlaw hate speech: “any propaganda for war shall be
prohibited by law” and “any advocacy [written or spoken] of national, racial
or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.” Thus, the international community has
collectively acted to condemn hate speech, and through ICCPR (also
CERD) to oblige signatories to prohibit such expression. Yet there is still no
international human rights court to implement decisions of the UN Commission
on Human Rights or work with its Human Rights Committee, as
there is no court to enforce the Universal Declaration of Human Rights.
The European Court of Human Rights (ECtHR), established in 1959,
is the only permanent human rights court in the world and is also unique in
that all signatories of its Convention for the Protection of Human Rights
and Fundamental Freedoms, usually cited as the European Convention on
Human Rights (ECHR), are legally obligated to accept its decisions; most
of them have incorporated the Convention into their domestic law. “The
Supreme Court for Human Rights in Europe,” as it is hailed, is the pioneer