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DIND - Clase IX - Modulo 2 (2018)
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DIND - Clase IX - Modulo 2 (2018)

Freedom of Expression and Discriminatory Speech

Introduction to the Module

  • This module focuses on freedom of expression and discriminatory speech, aiming to apply technical tools developed in previous discussions to this specific issue.
  • The goal is to avoid superficial readings of relevant norms, seeking compatibility and coherence within the legal system rather than viewing laws in isolation.

Legal Framework on Discriminatory Speech

  • Article 13(5) of the American Convention on Human Rights prohibits propaganda for war and hate speech that incites violence against individuals or groups based on race, religion, or nationality.
  • The prohibition implies a need to prevent the circulation of discriminatory discourse and sanction those responsible under anti-discrimination laws.

Censorship and Freedom of Expression

  • The response to discriminatory speech depends on how prior censorship is interpreted as outlined in Article 13(2), which states that freedom of expression should not be subject to prior censorship but can incur subsequent responsibilities.
  • Traditionally, prior censorship was seen as a protective measure preventing preemptive evaluation of speech before dissemination (e.g., books, press publications).

Balancing Rights in Freedom of Expression

  • There exists a duality where freedom of expression protects both individual rights to speak and community rights to access information; thus, prior censorship must consider both dimensions equally.
  • A proposed interpretation suggests extending the concept of prior censorship throughout the lifespan of discourse since anyone may wish to access it at any time. However, this raises concerns about the practicality and meaning of "prior."

Legal Standards for Sanctioning Discriminatory Speech

  • Article 5 introduces exceptions allowing public performances to be subjected to prior censorship under certain conditions; however, ambiguity remains regarding prohibitions outlined in Article 13(5).
  • The American Convention emphasizes strict criteria for imposing subsequent responsibilities: they must be legally defined (both formally and materially) and necessary for achieving legitimate constitutional goals.

Discriminatory Speech and Its Legal Implications

The Justification for Prohibiting Discriminatory Speech

  • The potential effects of discriminatory speech are insufficient to justify its prohibition; autonomy requires that individuals be treated as equally capable of making their own life choices.
  • External influence, such as pressure to act in a certain way, cannot justify penalizing speech since individuals will autonomously decide their actions.

Evaluating Hate Speech within Jurisprudence

  • Inter-American jurisprudence has not resolved specific cases regarding hate speech; thus, it is proposed to refer to American legal standards which support robust public debate.
  • U.S. law distinguishes between generic advocacy for violence and incitement to violence, with the former encompassing theoretical developments and vague discriminatory statements.

Criteria for Incitement to Violence

  • Discriminatory speeches like denialism or supremacist theories should be viewed as generic advocacy and remain part of public discourse rather than being penalized.
  • For a statement to qualify as incitement, it must target a specific group with a real possibility of triggering violent acts.

Standards from International Bodies

  • The UN Special Rapporteur on Freedom of Religion outlines similar standards regarding which speeches should be penalized versus those that can be debated publicly.
  • The Rabat Plan provides six elements to assess incitement: social/political context, speaker's status, intent behind the statement, content/form (style/provocation level), reach of the declaration, and likelihood of causing harm.

Balancing Free Expression and State Intervention

  • Only those discriminatory speeches closely resembling acts of subsequent violence may face penalties; this reflects a need for careful state intervention in free expression matters.
  • A shift in perspective is necessary where the state focuses less on individual discriminatory statements and more on ensuring an equitable public debate environment without systematic oppression of any group.

Ensuring Democratic Practices

  • The state should ensure that no groups are systematically oppressed or excluded from democratic practices while allowing free circulation of ideas in public discourse.
  • In isolated instances of discrimination that do not affect democratic practice significantly, state interference is unwarranted; however, systematic oppression warrants different tools for protection.