Paper: Hate Speech: A Pragmatic Assessment of the European Court of Human Rights’ Jurisprudence


This paper aims to offer a fresh start for addressing several conundrums relating to hate speech. The method of research combines a conceptual analysis with a possible model for evaluating the European Court of Human Rights’ (ECtHR) decisions on hate speech. First, drawing on a Gricean account of communication, the argument proposes a working definition of hate speech: hate speech is best understood as a public speech act, aimed at subordinating individuals, which causes harm to targeted groups. Second, the paper offers a taxonomy of the different forms of hate speech, based on their degree of explicitness and detachment from the speaker’s intentions. The most explicit forms of (harmful) hate speech – e.g., racial slurs, fighting words, or overtly sexist remarks – will be distinguished from implicit forms of (harmful) hate speech – e.g., innuendo, insinuation, and irony. Third, the author develops a categorical framework for hate speech that can be used as a standard for evaluating the jurisprudence of the ECtHR. The author also discusses three limitations of the model: a) the absence of a European consensus, b) puzzled speakers, and c) difficulty in determining harm.

1 Introduction

John C Roberts, Chief Justice of the US Supreme Court, once wrote: ‘Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow […].’1 Similarly, the Proverbs (15:1) reads: ‘The tongue has no bones, but it is strong enough to break a heart. So be careful with your words.’ These considerations gain particular weight when applied to hate speech. Respectful and inclusive use of language is a tool for promoting tolerance and equality.2 Hate speech, instead, might bring about social fragmentation and discrimination.3 Derogatory speech is often seen as a threat to human rights;4 this extreme use of language is usually associated with social conflict.5 It does not necessarily follow from these premises that regulation is the best response, unless we advocate a ‘militant’ view of democracy (i.e., the notion that democratic orders shall curb the rise of extremist and anti-democratic discourses in order to preserve democracy itself).6 Conceptually, democracies can be conceived in other ways. Eric Heinze, for example, argues in favour of unrestricted freedom of expression on the grounds that it is important to fulfil the ‘legitimizing expressive conditions’ of a ‘longstanding, stable and prosperous democracy.’7 In his view, banning certain categories of speech undermines the democratic process.8 Moreover, imposing linguistic politeness does not necessarily prevent discrimination and violence.9 However, the European Court of Human Rights (ECtHR, Strasbourg Court) has generally favoured a militant approach and, in particular, has grappled with hate speech in high-profile decisions, such as Féret v Belgium, holding that some forms of hate speech are not protected by Articles 10 and 17 of the European Convention on Human Rights (echr).10 Determining which expressions count as hate speech is, therefore, central for both understanding and evaluating the jurisprudence of the ECtHR.