Origin of Hate Speech Laws; The Controversy that Beleaguers Them

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Post WW II International Treaties

“Hate Speech” laws arose in the late 1940s and were first introduced through the concerted pressure of communist states. Jacob Mchangma, author of Free Speech: A global history from Socrates to social media  points out “the drafting history of the protection of freedom of expression  in the Universal Declaration of Human Rights does not leave any doubt that the dominant force behind the attempt to adopt an obligation to restrict this right under human rights law was the Soviet Union.”

In subsequent human rights treaties, the European communist nations sought to prohibit “advocacy of hatred” while the liberal democratic nations argued in favour of free speech.

Article 4 of the International Convention on Elimination of Racial Discrimination (ICERD) requires states to “undertake immediate and positive measures to eradicate all incitement to, or acts of such discrimination”. Adopted by the UN General Assembly in 1965, Article 4 of the ICERD is undoubtedly the most far-reaching of all the International laws relating to “hate speech.”

As Mchangma observes “ the voting record reveals the startling fact that the internationalisation of hate speech prohibition in human rights law owes its existence to a number of states where both criticism of the prevailing totalitarian ideology as well as advocacy of democracy were strictly prohibited.”

Attempts to Define “Hate Speech”

There have been several attempts to define “hate speech” in the last several decades in connection with various international covenants or conventions such as the ICCPR (International  Covenant  on Civil and Political Rights) or ICERD. None has succeeded in giving a satisfactory definition of “hate speech” simply because there is no way to distinguish speech which is offensive to some people from speech which expresses hatred.

But we have now entered an era in which the rights of certain designated minorities supersede the rights of the rest of us, where their so-called “right not to be offended” takes precedence over the rights of the majority to express their views plainly if robustly. There is no such “right not to be offended” of course, it is bogus, a falsehood, a chimera, a sham; but we live in an era where new rights are invented in numbers by the international priesthood of human rights experts, where the  will o’ the wisp reigns supreme over solid substantial traditional rights. Moreover these favoured groups are numerous, there are ten of them in this bill.

It must never be forgotten that the intention of the new Hate Crime bill is to make it easier to secure more convictions.

Incoherence of Hate Speech laws: Censorship

Eric Heinze, in his book The Most Human Right: Why Free Speech Is Everything published by MIT Press  asserts that  “There can be no such thing as a right unless there is a freedom to claim it or argue for it; the average well-informed human rights expert is going to say yes, free speech is important, but no more than twenty other things.”

Indeed we have heard this last argument used a number of times in the current debate by those who advocate for “hate speech” laws.

The belief that “hate speech” causes real and actual harm to the individual and must therefore be prohibited is widespread amongst the various national and international legislative bodies, courts and policy-making institutions in Europe. In his book Censored: How European “Hate Speech” laws are threatening Freedom of Speech, the  international human rights and European law expert Paul Coleman writes : Dozens of Europe’s  “hate speech” laws are reproduced [here] but a clear pattern has emerged in Europe: Once governments begin legislating restrictions on speech, there is no obvious stopping point.

The book details fifty “hate speech” cases that have been prosecuted but they defy being categorised and show an incoherence of the law. Coleman says the recent proliferation of “hate speech” laws serves to undermine the rule of law itself.

The Scottish Experience

A Hate Speech bill was passed into law in Scotland in March 2021, against widespread opposition from many quarters including judges and senior ranking police officers.

The “stirring up hatred” could be either “with the intention” of doing so, or “where it is a likely consequence that hatred will be stirred up against such a group”. The Scottish Police Federation said the bill “appears to paralyse freedom of speech in Scotland


In March 2021 Jamie Gillies of the  Free to Disagree campaign in Scotland, complained that they have waited months for explanatory notes that clarify what will not be caught by this controversial speech law. “The Scottish Government is clearly struggling to explain its hate crime law and how it relates to free expression. They have no answer to concerns the legislation could chill free expression in Scotland and trigger police investigations at an inappropriate threshold”.

He went on to describe the bill  as an “authoritarian mess” (Spiked).

Yet the Act is still not  in force in Scotland, in some measure  because the Police do not want to be tasked with interpreting what hate speech is.

The Free Speech Union in England wondered: Is there any hope that this form of progressive illiberalism is little more than a passing fad? and went on to answer: Not according to Prof Eric Kaufmann. Writing for Unherd, he describes the steady erosion of free speech values in western liberal democracies as “generational”, with surveys consistently finding that “woke” values are twice as prevalent among younger Leftists than older Leftists.


This is Part I of a two-part series. Part II to follow.

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