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The doctrine of Hate Speech and other fundamental rights: a comparative analysis inside a global legal system

In multicultural societies, which are characterized by the diversity of cultures, religions, and lifestyles, it is sometimes necessary to reconcile the right of freedom of speech with other rights, like the right to dignity, equality, religion, or
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  Title: The doctrine of Hate Speech and other fundamental rights: a comparative analysis inside a global legal system Author: H’talo Silva ABSTRACT In multicultural societies, which are characterized by the diversity of cultures, religions, and lifestyles, it is sometimes necessary to reconcile the right of freedom of speech with other rights, like the right to dignity, equality, religion, or the right to be free from discrimination. This reconciliation can transform a set of problems, because these rights are all key elements of a "democratic society." However, even with the wide scope of freedom of speech, some restrictions on the exercise of this right may, in some circumstances, be necessary. This right as an outward manifestation or externum forum  is not an absolute right. The exercise of the freedom carries with it responsibilities and obligations and is subject to certain restrictions, particularly, those that concern the protection of rights of others. One of the plain limits of the freedom of speech is the doctrine of hate speech. The term "hate speech" refers to insults, stigmas or epithets targeted at a specific group of people based on shared characteristics of this group. These characteristics are race, gender, or religion; this list can also include ethnicities, sexual orientation, and even disabilities. This paper compares different legal systems as they regulate the hate speech doctrine. Each countryÕs legal system treats the issue of restriction of the freedom of speech differently, considering other fundamental rights equally relevant. The paper will provide a short discussion of the actual overview about hate speech in different legal systems, showing emblematic cases resolved by the European Court of Human Rights, the United States Supreme Court, and the Federal Supreme Court of Brazil. The critical theory will be used to question the reality of different legal systems with a view of the democratic state of law by using statutes, case law and bibliographical analysis of some authors, focusing on the theory of Jeremy Waldron about ÒThe Harm of Hate Speech.Ó All things considered, the study will show the huge distinction between the decisions around the world concerning hate speech with different approach considering different historic  background and culture of each country. The paper will show a specific preference for one  standard of decision and proposes a unified standard according to the doctrine of hate speech, which at the same time imposes more protection to human rights inside a global legal system. 1.   Restrictions on the freedom of speech 1.1.   Concepts of Hate Speech The term Hate Speech refers to insults, stigmatizes or epithets directed to certain group of people, based on shared characteristics of this group. Usually these characteristics are race, gender or religion, but also can be included ethnicities, sexual orientation or various disabilities. According to the north-American authors J. Angelo Corlett and Robert Francescotti: Hate speechÕ is a term of art in legal and political theory that is used to refer to verbal conduct Ð and other symbolic, communicative action Ð which willfully expresses intense antipathy towards some group or towards an individual on the  basis of membership in some group, where the groups in question are usually those distinguished by ethnicity, religion, or sexual orientation. 1   ItÕs interesting to read some authors that define Hate Speech in terms more known in the common sense, like defamation or siege according to J. Brison 2  and Onder Bakircioglu 3 , or in reference to their common affective consequences, as the feeling of anguish or anxiety according to Laura Beth Nielsen 4 . Hate Speech includes things like abuse of harmful identity and siege, certain use of insults and epithets, some political speech and extremist religious speech, and also certain manifestations of Òhate symbols.Ó There is one classification of some activities of Hate Speech, it depends whether the speech transmits the idea of membership of a particular social group, if it  justify that someone is being treated with contempt. 1.2.   Classification Some authors classify the doctrine of Hate Speech into three categories, each of which  produces a different harm to freedom of expression and other fundamental rights that are at stake, it makes up in classification: Targeted Vilification as Uncovered Speech; Diffuse 1  CORLETT, J. Angelo. FRANCESCOTTI, Robert. ÔFoundations of a Theory of Hate SpeechÕ  , The Wayne Law Review 48 (2002): 1071Ð1100, p. 1083 2  BRISON, Susan J. The Autonomy Defense of Free Speech , Ethics 108 (1998), p. 312Ð339. 3  BAKIRCIOGLU, Onder.  Freedom of Expression and Hate Speech , Tulsa Journal of Comparative & International Law 16 (2008): p.45. 4  NIELSEN, Laura Beth. License to Harass: Law, Hierarchy, and Offensive Public Speech. Princeton: Princeton University Press, 2004.    Vilification as Unprotected Speech, Organized Political Advocacy for Exclusionary and/or Eliminationist Policies. 1.2.1.   Targeted Vilification as Uncovered Speech The author Caleb Young says that defamation as category of hate speech is the dominant speech that is intended to injure, insult or intimidate the public, motivated by hostility or contempt for racial or religious identity from the public. Libel is a targeted vilification that is directed at an individual or small specific group of individuals. Thus, this category includes not only face to face, but also incidents without immediate contact, but where the defamatory speech is, however, specifically and narrowly directed, the author cites examples such as when racist graffiti are painted with spray on some port in front of the house of someone, or when a rope or other racially charged symbol is placed on someone's desk at work or at school, with the deliberate intent to injure or intimidate workers or special student 5 . As Greenawalt noted, the defamation key element is that the dominant intention is to hurt and insult the listener. Instead of choosing words that the speaker thinks better communicate his message, he chooses words for their potential to injure. Indeed, Greenawalt considers libel as a form of "psychic attack" 6 . Similarly, for targeted vilification Lawrence is emphatically not a deliberative or even communicative effort, since the speaker's intention is not to uncover the truth or start the dialogue, but to hurt the victim. Moreover, as Brink affirms, defamation staff usually causes an inarticulate response as emotional stress, visceral retaliatory remarks, or even violence. Targeted vilification and not covered because it does not promote any interests of freedom of expression and its regulation does not violate the rights to freedom of expression; in fact, concerns the justification of free speech are hardly involved in this category of hate speech at all. 1.2.2.   Diffuse Vilification as Uncovered Speech Diffuse vilification differs from targeted vilification because it is not directed at specific individuals or small groups, but is directed as much (in part) to the friendly public hearing, or in a broad and indeterminate public. This usually takes the form of symbolic speech. Examples exposed by the author Caleb Young include Nazi march proposed by the village of 5  YOUNG, Caleb.  Does Freedom of Speech Include Hate Speech?  Oxford: Springer, 2011, p. 145. 6  GREENAWALT, Kent. . Fighting words: individuals, communities and liberties of speech . Princeton, NJ: Princeton University Press, 1995, p, 49.    Skokie Illinois, or the simulation of slave auction staged by a group of activists at the University of Wisconsin. 7   Nazi march became known in the US Supreme Court as National Socialist Party of America v. Village of Skokie 8 . In 1977, Frank Collin, the leader of National Socialist Party of America (NSPA), announced the intention of the party to march in Skokie, Illinois. In  predominantly Jewish community, one in six inhabitants was a Holocaust survivor. Originally, the party had planned a political rally in Marquette Park in Chicago; however, the Chicago authorities foiled these plans first, by requiring the party to suit a public safety obligation then to  ban all political demonstrations in Marquette Park. On behalf of that party, the American Civil Liberties Union (ACLU) challenged the injunction issued by the Cook County Court, Illinois, prohibiting protesters at the rally in Skokie using Nazi uniform or displaying swastikas. Such Union was represented by civil rights attorney Joseph Burton. The challengers argued that the injunction violated the First Amendment rights of the demonstrators to express themselves. So the case reached the Supreme Court, which ruled in 1977 that the use of the swastika was not framed as "fighting words", words that provoked the hate speech of the Jewish people of Skokie and should be protected by the First Amendment as use of free expression. So it is clear that the widespread defamation protected the speech as always, is like a symbolic speech and is exposed to a large and undetermined public. At this point Brison points out that restrictions on hate speech are usually motivated  by a concern to avoid or reduce damage to the victims of injustice in such speech, not by moral disapproval of those who engage in hate speech. 9  Indeed, Ronald Dworkin seems to accept that regulations aimed at preventing damage does not offend the moral right to independence, since the justification for such restrictive laws would not be based on a judgment that the speakers (or members of the public) are the "worst people". 10  1.3.   Literature of Hate Speech Much of the literature on this doctrine comes from a US legal perspective and is, as such, framed by questions about the constitutionality of restrictions on hate speech in the form of 7   BRINK, David O.  Millian principles, freedom of expression and hate speech . Legal Theory 7, 2012, p. 136.   8   Village of Skokie v. Nat. Socialist Party of America, 372 N.E.2d. 21   9  BRISON, Susan J. The autonomy defence of free speech . Ethics 108, 1998, p. 325. 10  DWORKIN, Ronald.  Is there a right to pornography?  Oxford Journal of Legal Studies 1, 1981, p. 195-196  "campus speech codes," according to author Nadine Strossen such expression within the north American context is defined as: The "campus speech codes" are standards used by educational institutions (usually post-secondary institutions) to prevent hate speech within its  boundaries, typically using the threat of academic suspension or expulsion. 11   Some authors start with the courts in defense of rigid priority of First Amendment  protections for freedom of speech, while critics argue that the demands of the First Amendment must be balanced with social egalitarian aspirations of the Fourteenth Amendment. A little later, however, the discourse on hate speech has shown an increasingly cosmopolitan outlook. Canada, England, Australia and many other European countries, modest legal restrictions on hate speech are well established, and not so vigorously contested as in the US. It is natural to ask then whether freedom of expression and egalitarian social ideals are  being negotiated in these legal regimes, and if there is a coherent and stable justification for these restrictions on hate speech while professing an allegiance to freedom of expression. With these concerns in mind, a number of contemporary authors seek to identify and evaluate the reasons that can be given in favor of legal restrictions on hate speech. The authors, Steven J. Heyman, and Jeremy Waldron, are intended to describe one of the foundations of social equality as a political value, and thus articulating the justifications for legal restriction on hate speech. The pieces are thematically unified by the emphasis that put the idea of dignity. Both authors consider the properly formulated restrictions on hate speech as a tool to guarantee a decent social order. However, neither the authors propose to establish a decisive case in favor of legal restrictions on hate speech. Heyman argues that hate speech should not enjoy special protection under the US Constitution, and thus he challenges a special barrier to legal restriction of hate speech in US courts. 12  Waldron, in his latest work, says he is trying to offer a characterization of the law of anti-hate speech, as something that is already part of Western liberal legal systems outside the US, in the hope that this characterization will make clear to the American critics of anti-hate speech laws on which the foundations of these laws, or as may reasonably be motivated. 13  1.3.1.   The doctrine of Jeremy Waldron The American philosopher Jeremy Waldron urges Americans to reconsider this tradition  prevalence of free speech in the United States on any pretext. Although he considers "unlikely" that the law of hate speech "will never pass the constitutional group in America," he hopes to 11  STROSSEN, Nadine.  Regulating Hate Speech on Campus: A Modest Proposal? . Duke Law Journal 1990 (1990),  p. 461.   12   HARE, Ivan. WEINSTEIN, James.  Hate Speech, Public Discourse, and the First Amendment  ,  Extreme Speech and Democracy . Oxford: Oxford University Press, 2009, p. 159.   13   WALDRON, Jeremy. The Harm in Hate Speech . Cambridge, MA: Harvard University Press, 2012, p.11Ð17.  
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