Regulating Hate Speech: Nothing Customary about It

Table of ContentsI. Introduction 231II. Customary International Law 232A. The Objective Element: State Practice 2341. Selection of state practices 2342. Evaluation of state practices 236B. The Subjective Element: Opinio juris 237III. Current Legal Landscape 238A. European Law 2381. Germany 2392. The United Kingdom .........2413. France .........243B. American Law .......244C. International Law .......247IV. Assessing the Practice: Nothing Customary About It .........251V. Conclusion 255I. IntroductionOn December 3, 2003, the trial chamber of the International Criminal Tribunal for Rwanda ("ICTR") convicted three defendants of crimes against humanity based on speech it deemed incitement to racial hatred, but not incitement to racial violence.1 In the court's judgment, "hate speech that expresses ethnic and other forms of discrimination violates the norm of customary international law prohibiting discrimination."2 The tribunal based its holding on international and domestic law which it believed established a customary international law ("CIL") prohibiting hate speech. This long awaited judgment was notable for-other than being the first time an international court declared hate speech restrictions part of CIL-its divergence from another international tribunal decision. Less than three years earlier, the International Criminal Tribunal for the former Yugoslavia ("ICTY") emphatically declared that incitement to racial hatred did not constitute persecution as a crime against humanity, ruling that "the criminal prohibition of [incitement to racial hatred] has not attained the status of customary international law."3 These conflicting judgments raise the question: have hate speech restrictions really assumed CIL status?Since World War II, a significant number of European countries have enacted laws restricting hate speech, with the goal of promoting respect and equality. Additionally, several provisions of international law, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights, likewise mandate limitations on speech deemed hateful. The United States, by contrast, affords substantial protection to hate speech under the First Amendment, protecting even the advocacy of racial violence,4 flag burning,5 and protests at soldiers' funerals against homosexual equality.6The apparent conflict between European hate speech laws and the general regard for freedom of expression further complicates the issue of whether hate speech regulations have assumed CIL status. CIL is characterized by "general and consistent practice of states followed by them from a sense of legal obligation."7 It is determined by looking to state practice, including domestic laws, international treaties and covenants, and international court decisions. Examples include the Geneva conventions and the practice of granting immunity to visiting foreign heads of state. CIL status may require nations lacking speech regulations to adopt international treaties or domestic statutes restricting hateful speech. Further, CIL status may allow international bodies to enforce hate speech regulations in nations currently lacking them. Conversely, a lack of CIL status will allow nations without discriminatory speech proscriptions to continue to tolerate such speech.This Comment will argue that hate speech regulations have most likely not assumed CIL status. Section II will explain the legal standard surrounding CIL This section will explain how an international norm becomes customary law. Section III will describe the current state of hate speech laws internationally, focusing on the domestic laws of Germany, France, the United Kingdom, and the United States, along with international agreements. Finally, Section IV will explore whether hate speech regulations have satisfied the legal standard of CIL, evaluating the popularity of hate speech laws throughout the world and in international law and the extent to which nations enact them out of a sense of moral or legal obligation. …