Freedom of speech with hate speech laws, First Amendment (U.S. Constitution),Article 19 of (UDHR), Article 10 of the (ECHR), Approaches by Country

Freedom of speech with hate speech laws

Balancing freedom of speech with hate speech laws is a complex and evolving issue in constitutional law, political philosophy, and human rights discourse. Here's an overview of the key points, including legal principles, arguments, and international comparisons:

1. What Is Freedom of Speech?

Freedom of speech is the right to express one’s opinions publicly without government interference, censorship, or punishment. It's a cornerstone of democratic societies and is protected by documents like:

First Amendment (U.S. Constitution):

An Overview:

The First Amendment to the United States Constitution is one of the most fundamental legal protections for individual liberty in American law. It reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Key Protections Under the First Amendment

1.Freedom of Religion:

Establishment Clause: 

Prevents the government from establishing a national religion.

Free Exercise Clause: 

Protects individuals' rights to practice their religion freely.

2.Freedom of Speech:

Protects individuals from government censorship or punishment for expressing opinions.

Covers spoken, written, symbolic speech (e.g., flag burning), and more.

3.Freedom of the Press:

Allows for independent journalism free from government control or interference.

4.Right to Assemble Peaceably:

Grants the right to hold public meetings, protests, and demonstrations.

5.Right to Petition the Government:

Individuals may express grievances or seek remedies from the government without fear of punishment.

6.Right to Petition the Government:

Individuals may express grievances or seek remedies from the government without fear of punishment.

Freedom of Speech: Scope and Limits

While broad, the First Amendment is not absolute. The U.S. Supreme Court has ruled that certain types of speech are not protected, including:
Incitement to imminent lawless action (Brandenburg v. Ohio, 1969)

True threats and intimidation

Obscenity (Miller v. California, 1973)

Defamation (libel and slander)

Child pornography

Fighting words (Chaplinsky v. New Hampshire, 1942 – though rarely enforced today)

Notable First Amendment Cases

Schenck v. United States (1919): Introduced the "clear and present danger" test.

Tinker v. Des Moines (1969): Students do not lose First Amendment rights at school.

Texas v. Johnson (1989): Flag burning is protected symbolic speech.

Citizens United v. FEC (2010): Corporations have free speech rights in campaign spending.

Modern Relevance and Challenges

Social Media and Tech: 

While platforms like Facebook or Twitter are private entities (not bound by the First Amendment), issues about online censorship and misinformation raise new challenges.

Hate Speech: 

The U.S. does not ban hate speech unless it meets criteria like direct incitement to violence—contrary to many other democracies.

Article 19 of the Universal Declaration of Human Rights (UDHR)

Article 19 of  (UDHR)

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Key Components of Article 19

Right to Hold Opinions Without Interference:

Protects individuals from government or societal pressure to adopt or abandon opinions.

This right is absolute—it cannot be restricted under any circumstances.

Freedom of Expression:

Covers verbal, written, visual, and symbolic communication.

Includes peaceful protests, art, journalism, academic work, and online content.

Right to Seek, Receive, and Impart Information

Encompasses the freedom of the press, open access to information, and global communication (e.g., internet use).

“Regardless of frontiers” affirms that this right transcends national borders.

Significance and Purpose

Adopted by the United Nations General Assembly in 1948, the UDHR was created to promote human dignity, peace, and freedom after the atrocities of World War II.

Article 19 serves as a global standard for free expression and is the basis for numerous national constitutions and international treaties (like the International Covenant on Civil and Political Rights (ICCPR)).

Limitations and Balance with Other Rights

While Article 19 affirms broad rights, it is not absolute in international law. It may be restricted to:

Protect national security, public order, public health, or morals

Prevent incitement to violence or hate

Respect the rights and reputations of others

These limitations are outlined in Article 19(3) of the ICCPR, which builds on the UDHR with legal enforceability.

Global Relevance Today

Censorship, internet shutdowns, and media suppression continue to violate this right worldwide.

Governments often claim national security or public morality as grounds for restriction, raising concerns about abuse.

Freedom of expression activists and press freedom organizations (e.g., Reporters Without Borders) rely on Article 19 in their advocacy.

Article 10 of the European Convention on Human Rights (ECHR)

Article 10 of the (ECHR):

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary.

Key Elements of Article 10

1. Freedom of Expression (Clause 1):

Positive rights: To express oneself, receive, and share information and ideas.

Covers: Political speech, journalism, art, satire, online content, protests, etc.

Applies regardless of frontiers—international and digital communication is protected.

2. Limitations (Clause 2):

Unlike the U.S. First Amendment, Article 10 explicitly allows restrictions if:

i. Prescribed by law

ii. Necessary in a democratic society

iii. Pursue a legitimate aim (e.g., public order, national security)

Balancing Test Used by the European Court of Human Rights (ECtHR)

The ECtHR uses a three-part test to decide if a restriction is lawful:

Is it prescribed by law?

Does it pursue a legitimate aim?

Is it necessary in a democratic society? (i.e., proportionate and pressing social need)

Important ECtHR Cases Under Article 10

1. Handyside v. UK (1976): "Freedom of expression applies not only to information or ideas that are favorably received... but also to those that offend, shock or disturb."

2. Lingens v. Austria (1986): Political expression gets the highest protection.

3. Jersild v. Denmark (1994): Journalists cannot be punished for reporting hate speech unless they actively promote it.

4. Delfi AS v. Estonia (2015): Website liable for user comments inciting hatred—balancing freedom with responsibility.

Special Features of Article 10

Freedom of the press is strongly protected, but journalists must act in good faith and provide accurate, balanced reporting.

States are given a margin of appreciation—some leeway in how they apply restrictions, depending on national context.

Emphasizes the duties and responsibilities of the speaker, not just their rights.

2. What Is Hate Speech?

Hate speech involves expressions that incite hatred, discrimination, or violence against individuals or groups based on race, religion, ethnicity, gender, sexual orientation, or other identity markers.

Countries define it differently, but it typically includes:

Incitement to violence

Promotion of discrimination or hostility

Defamation of protected groups

3. The Core Tension:

The challenge lies in deciding when speech crosses the line from being protected expression to being harmful enough to warrant restriction.

Freedom of Speech

Hate Speech Restrictions

Protects dissent and ideas

Protects human dignity and social harmony

Encourages debate

Limits speech that incites violence or discrimination

Prevents government overreach

Prevents societal harm and marginalization

4. Approaches by Country:

United States:

Very strong protection under the First Amendment.

Hate speech is generally protected unless it incites imminent lawless action (Brandenburg v. Ohio, 1969).

Canada:

Balances free expression (Charter of Rights and Freedoms) with hate speech bans.

Criminal Code bans public incitement of hatred (Section 319).

Germany:

Historical context (Nazi regime) justifies strict laws against Holocaust denial, Nazi symbols, and incitement of hatred (Strafgesetzbuch §130).

Pakistan:

Article 19 of the Constitution guarantees free speech but allows "reasonable restrictions" in the interest of:
i. Islam's glory

ii. National security

iii. Public order, decency, or morality

iv. Blasphemy laws and cybercrime laws are controversial in terms of restricting speech.

5. Legal and Philosophical Justifications:

In Favor of Protecting Free Speech:

Marketplace of ideas (John Milton, John Stuart Mill)

Avoids slippery slope of censorship

Encourages political and social progress

In Favor of Regulating Hate Speech:

Prevents violence and social fragmentation

Protects marginalized groups

Promotes equality and human dignity

6. International Law Perspective:

Article 19 ICCPR: 

Protects freedom of expression

Article 20 ICCPR:

 Requires prohibition of propaganda for war or hate speech

UN Human Rights Committee tries to strike a balance, urging countries to respect both rights and responsibilities in speech.

7. The Way Forward: Striking a Balance

An ideal legal framework may:

Allow robust political and social discourse

Ban direct incitement to violence or hatred

Use clear definitions to avoid vague enforcement

Promote education and counter-speech rather than criminalization alone

Conclusion:

Article 10 of the ECHR strikes a careful balance between protecting freedom of expression and allowing reasonable restrictions to safeguard democracy, public order, and individual rights. It is one of the most influential legal provisions in European human rights law and serves as a model for many other jurisdictions.
Balancing freedom of speech with hate speech laws is about finding the middle path between individual liberty and collective protection. The legal and ethical landscape will continue to evolve with societal values, technology, and political context.