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24 Cardozo L. Rev. 1523 (2002-2003)
Hate Speech in Constitutional Jurisprudence: A Comparative Analysis

handle is hein.journals/cdozo24 and id is 1537 raw text is: HATE SPEECH IN CONSTITUTIONAL JURISPRUDENCE: A COMPARATIVE ANALYSIS Michel Rosenfeld* INTRODUCTION Hate speech-that is, speech designed to promote hatred on the basis of race, religion, ethnicity or national origin-poses vexing and complex problems for contemporary constitutional rights to freedom of expression.' The constitutional treatment of these problems, moreover, has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary from one setting to the next. There is, however, a big divide between the United States and other Western democracies. In the United States, hate speech is given wide constitutional protection while under international human rights covenants2 and in other Western democracies, such as Canada,3 Germany,4 and the United Kingdom,5 it is largely prohibited and subjected to criminal sanctions. The contrasting approaches adopted by the United States and other Western democracies afford a special opportunity to embark on a comparative analysis of the difficult problems posed by hate speech and of the various possible solutions to them. As we shall see, in the United States, hate speech and the best ways to cope with it are conceived differently than in other Western * Justice Sydney L. Robins Professor of Human Rights, Benjamin N. Cardozo School of Law. I wish to thank Norman Dorsen for helpful comments and suggestions. 1 1 use the term constitutional rights in a broad sense that encompasses both rights arising under national constitutions and those established by international human rights covenants, notwithstanding that, strictly speaking, the latter may be treaty based rights rather than constitutional rights. 2 See discussion infra Part III.D. 3 See discussion infra Part III.A. 4 See discussion infra Part III.C. 5 See discussion infra Part III.B. 1523

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