Hate Speech

I wrote this short paper last year as part of my Criminal law class and an exercise in comparative law. With the recent controversy over Danish caricatures of our beloved Prophet, I ask, do the cartoons qualify as hate speech? Especially considering the fact that they were reprinted in German and French newspapers which have specific hate speech statutes on the books. Will those editors be prosecuted? Seems like hate speech applies to every group but Muslims. Please note that I in no way condone the violence that Muslims around the world are engaging in as a means of protest. For a great post that pretty much speaks my viewpoint on the issue see Aisha's post on It's My Life (on my blog list).


Hate Speech in Germany and South Africa.
Hate speech is defined as any communication that “degrades a person or group of people based on race, religion, gender, sexual orientation, or other distinguishing status.”[1] In examining the controversial tension between the values of freedom of speech and freedom from prejudicial and discriminatory speech, the differences between Germany and South African provide insight into this area of the law. Both nations retain vivid memories of a history of repression and violence against a specific class or group within their society. However, they have responded in vastly different ways to the problems accompanying such infamous histories.
The basis for German Hate Speech legislation finds its roots in the German Constitution (“Grundgestz”), which was created under allied guidance after Germany’s surrender during World War II.[2] The constitution allows for the promulgation of such laws as are necessary to promote the protection of the youth and of personal honor.[3] Although the constitution provides a fundamental right to freedom of speech, it also provides that this right may be forfeited if that speech is used to promote the violation of the rights of others or if it offends the “constitutional order or the moral code.”[4] In Germany, hate speech is classified as a violation of the personal honor and rights of others. Therefore under Germany’s Basic Law, the government is given the right to limit freedom of expression and has done so through the passage of several laws outlawing hate speech.[5] These laws especially target neo-Nazi groups and ultra-right wing political parties whose rhetoric add to the increasing problem of hate crimes in Germany.[6] These laws specifically outlaw acts against “parts of the population” which lead to the “incitement of hatred, provocation of violence or lawlessness, and insult, ridicule, or defamation.”[7] [emphasis added]. Further related laws prohibit the selling of certain “dangerous materials” to people under the age of eighteen, and “inciting the public to race hatred.”[8] Thus, in Germany the dangerousness of certain forms of speech outweighs the concerns regarding freedom of speech.
South Africa, also known for its own forms of invidious discrimination and violence against a specific group within its society, has addressed the concerns over hate speech in a completely different manner. The “New South Africa” is significantly closer in time and therefore all the possibilities and ramifications for hate speech legislation have yet to be examined. However, South Africa has already shown one step away from strict legislation of hate speech through its rejection of a hate speech provision in its new constitution promulgated in 1992.[9] While several proposals were made during the drafting of a Bill of Rights for the New South Africa, none of these were accepted in the final version. Certain key passages pointed towards the ability to allow the state to enact legislation prohibiting racial hostility, along with many other forms of hostility, and allowing the state to prohibit the dissemination of racially divisive materials which “insult, degrade, defame, or encourage abuse of any … group.”[10] Ultimately, the African National Congress rejected these additions for several reasons. Among them were qualms as to the ability to criminalize insults, the practical ability to apply laws limiting speech, and the fact that the black majority, having finally seized political power were not feeling “powerless or excluded as a result of racist expression” any longer and did not feel a pressing need to criminalize hate speech.[11] Only time will tell as to the needs of the South African society in the future and to whether they will feel a need to ban racist speech at a later date.
Although Germany and South Africa share a past steeped in violence and oppression of minorities, each country has chosen to approach the problem of hate speech in a different way. Germany looks to protect all classes of minorities within its borders from the resurging dangers of neo-nazism and increasing xenophobia through the regulation of speech. Meanwhile, South Africa’s recently oppressed population finds itself suddenly in the seat of power, perhaps lessening feelings towards the necessity of legislation criminalizing hate speech, and choosing not to add provisions to its constitution allowing for such legislation.
[1] Appleman, Bradley A., Note and Comment: Hate Speech: A Comparison of the Approaches Taken By the United States and Germany., 14 Wis. Int’l L.J. 422, 422 (1996).
[2] Id at 428.
[3] Id.
[4] Id. at 429.
[5] Id. at 431.
[6] Id. at 432.
[7] Id.
[8] Id. at 433.
[9] Neisser, Eric, Hate Speech in the New South Africa: Constitutional Considerations for a Land Recovering from Decades of Racial Repression and Violence. 3 D.C.L. J. Int’l L. & Prac. 335, 355 (1994).
[10] Id. at 354.
[11] Id. at 355.