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• “Congress shall make no law ... abridging the freedom ofspeech and the press”• Free market of ideas• “Unhibited, robust and wide-open debate” JusticeBrenan• "Shouting fire in a crowded theater" Oliver WendellHolmes, --- clear and present danger• Fighting words are written or spoken words, generallyexpressed to incite violence from their target / not“general advocacy of ideas”.• Warren Court: New York Times v. Sullivan(1964), Brandenburg v. Ohio (1969), Pentagon Papers(1971).• Not regulation of content / regulation place, time andconditions of the speech.
1. C. Mackinnon: radical feminism2. Owen Fiss: social structure.3. Jeremy Waldron: dignity and inclusiveness.1. Edwin Barker: autonomy and speech2. Ronald Dworkin: hate speech an political legitimacy3. Robert Post: rules of civility and rules of democracy4. J.S.Mill perspective: controversy is useful for the truth1. Voltaire: “I hate what I say, but I will defend to the death your right to say”Dictionary, Mohammendans: “I hate calumny so much that I do not want to imputefoolishness to the Turks, although I detest them as tyrants over women and enemy ofthe arts”.9. Diderot: Intolerance. The word intolerance is generally understood to mean thesavage passion that leads us to hate and persecute those in error. Any means thatprovoke hate, indignation, and scorn are impious.
Julius Streicherthe editor of Der StürmerHans Fritzschethe director of thePropaganda Ministry’s Broadcasting Division.Simon Bikindi songs anti-Tutsi hate speech and pro-Hutu solidarityDirect and public incitement to genocide for hate speech over aloudspeaker --- “snakes”The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, HassanNgeze - Radio Télévision Libre des Mille Collines
HR Committee• J.R.T. and the W.G. Party v. Canada (1983)• Robert Faurisson v. France (1993)• Malcolm Ross v. Canada (2000)• General Comment 34 (2011)CERD• The Jewish community of Oslo et al. v. Norway (2005)• General Recommendation No. 15European case law• Racial hate speech• Sexual orientation hate speech• Religious hate speech• Negationism• Speech based on totalitarian doctrine• Political speech• Anti-constitutional/national hatred speech
Inter-American system5. Any propaganda for war and any advocacy of national, racial, or religious hatred thatconstitute incitements to lawless violence or to any other similar action against anyperson or group of persons on any grounds including those ofrace, color, religion, language, or national origin shall be considered as offensespunishable by law.African system2002 Zimbabwe. Hate speeches given by President Mugabe2010 Côte dIvoire “The African Commission strongly condemns the biased and partisanmanner in which information is processed, as well as hate speech relayed by the Ivorianmedia. It urges the Ivorian Radio and Television (RTI) and the Ivory Coast Television (TCI)to show objectivity, restraint and professionalism in information processing”. PressRelease on the Deteriorating Situation of Human Rights in Côte dIvoire2011 Sudan: expresses concern on the noticeable hate speech from some sections of theSudanese community. Statement of the Chairperson of the African Commission onHuman and Peoples’ Rights, Madam Reine Alapini-Gansou, on the occasion of SouthernSudan referendum of 9 January 2011
- Protect dignity and inclusiveness- Case by case- Rabat plan of actionDifferentiate expressionsRobust definitions of hate, discrimination and violenceTest (legality / proportionality / necessity)Not cover blasphemy laws / nor political opinions / norinformation, scientific and historical speechComprehensive discrimination lawsEssential elements of analysis:– Context– Speaker– Intent– Content or form– Extend of the speech– Likelihood, imminence