Límites constitucionales al discurso del odio

  1. Valiente Martínez, Francisco
Supervised by:
  1. Federico de Montalvo Jääskeläinen Director

Defence university: Universidad Pontificia Comillas

Fecha de defensa: 13 July 2017

Committee:
  1. David Ortega Gutiérrez Chair
  2. Cristina J. Gortázar Rotaeche Secretary
  3. Luis A. Gálvez Muñoz Committee member
  4. Carlos Vidal Prado Committee member
  5. María Isabel Álvarez Vélez Committee member

Type: Thesis

Teseo: 515473 DIALNET

Abstract

This investigation is aimed at offering a study of the phenomenon known as “hate speech”. Hate speech means any message with the purpose of being offensive or harmful to members of any community at risk for exclusion. It is well known that most “hate crimes” are caused originally by some justifying rhetoric, attempting to make them look acceptable and ultimately denigrating their victims and diminishing their dignity. The conflict of rights is obvious: Is hate speech protected by free speech? If the answer is no, then the challenge arises to define which is the limit to free speech, or in other words, which messages are acceptable or not, who decides whether they are or not, and ultimately if this is the best way to fight the rethoric of discrimination. The debate on this question is everywhere on a global scale. A summing up is presented of the main international legal standards on hate speech in order to study their ongoing development, with a special emphasis on the work carried out by the United Nations, the Council of Europe and the European Union. On the other hand, it was necessary to examine the limits to freedom of expression, free thinking, academic and artistic freedom and freedom for scientific research, since hate speech may be present in any form of human communication. The application of the principle of proportionality as a preferential guideline to solve the conflicts of rights is analyzed from a critical perspective and a preferential yet not absolute treatment is proposed: the prevalence of freedom of expression except in those cases in which a clear and certain incitement to violence or a specific public liability can be generated. To this effect, the two basic models now prevailing when dealing with hate speech are compared: on the one hand, the European model, endorsed by the European Court of Human Rights, where the respect for human dignity comes first, and the American one, where the wide case-law of the Supreme Court has prioritized freedom of expression, almost in a radical way. Last but not least, the phenomenon of militant democracy and the peculiarities of the Spanish case are reviewed, both regarding the evolution of constitutional case-law and the alarming toughening of penal standards resulting in very questionable situations. Our investigation offers also a novel focus on how to regulate hate speech, giving preferential treatment to freedom of expression, rejecting the abuse of penal standards and fostering the free exchange of ideas. All this with a view to build up a sound, free and committed public opinion that must be one of the basic pillars of democracy.