Free Expression, Hate Speech, and LGBTI Rights

By Peter Dunne

One of the great differences between the public law regimes of Europe and the United States is the diverging attitudes that judges and legislators have adopted towards “hate speech.”

While both the First Amendment of the US Constitution and Article 10 of the European Convention on Human Rights recognize that free expression is essential to public debate, the Courts administering these two provisions have taken widely different views as to what transcends the boundaries of protected speech and becomes something that society might rightly prohibit.

In the recent case of Vejdeland v Sweden, the European Court of Human Rights unanimously upheld the conviction of individuals who had distributed homophobic leaflets in a public school. The materials statedinter alia that homosexuality has a “morally destructive effect on society”, that LGBTI advocates sought to make light of pedophilia, and that gay people were responsible for the “modern-day plague” of HIV/AIDS.

In its judgment the European Court held:

“Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner….”

In their accompanying opinion, Judges Judkivska and Villiger noted:

“[C]ases like the present one should not be viewed merely as a balancing exercise between the applicants’ freedom of speech and the targeted group’s right to protect their reputation. Hate speech is destructive for democratic society as a whole, since ‘prejudicial messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups’, and therefore it should not be protected.

The sentiments expressed in both of these opinions are representative of a very European conception of free expression–one that has been informed by a history of social upheaval and of witnessing first hand the very worst of hate speech left unchecked.

For those in the United States, Vejdeland is an interesting point of comparison with the recent case law of the Supreme Court, and in particular the decision in Snyder v Phelps . In that case, eight of the justices ruled that a protest by the Westboro Baptist Church, which included signs such as “God Hates Fags” placed one thousand feet away from a military funeral, was protected under the First Amendment.

The points of law decided in Vejdeland and Snyder are sufficiently different, so that any substantive comparison would be difficult to make. However, in Snyder, Chief Justice Roberts did clearly state that, as a nation, the United States has “chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled….” Obviously, this statement evinces a different understanding of hate speech from the Chief Justice’s European colleagues. In fact, it was Justice Alito, not known for being overly interested in foreign law, who best appeared to articulate the concerns which have found favor in the European courts:

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case…In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.

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