The ‘Value’ of Hate Speech

Is ‘hate speech’ always so valueless as to warrant its prohibition by international law?  Article 20 of the International Covenant on Civil and Political Rights not only condemns hate speech constituting incitement of discrimination, hostility or violence, but requires laws to prohibit it.  Identifying the point where free speech becomes hate speech, and therefore justifies a limitation on freedom of expression, has historically been riddled with problems:  set the standard too low and the potential objects of hate speech are left unprotected; set it too high and it risks becoming a tool of persecution for governments against their opponents.  At the recent Timely National Conference on Freedom of Expression in Kenya, the legitimacy of measures criminalising hate speech were considered, but there was no questioning of the definition of hate speech as “valueless” and therefore outside the scope of protection of international law.

Unlike the position of the ICCPR, 19^th century political philosopher JS Mill was an advocate of absolute freedom of expression, with no restriction for false or hateful statements.  In rejecting an ‘offence principle’, Mill argued that the suppression of statements deemed to be wrong not only denies us the opportunity to correct mistaken majority opinion, but robs us of “the clearer perception and livelier impression of truth, produced by its collision with error”.  More recently, the same stance has been taken up by opponents to Holocaust denial:  historian Deborah Lipstadt argues that the strongest weapon against Holocaust deniers is not censorship, but the truth.  Given the difficulties and dangers of abuse in drawing the line between free speech and hate speech, does Mill’s absolute freedom of speech today offer a more desirable and tenable legal position?

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