European Hate Speech Laws

Since the end of World War II, many European countries have witnessed a proliferation of hate
speech legislation designed to curb incitement to racial and religious hatred. Though originally
intended to guard against the kind of xenophobic and anti-Semitic propaganda that gave rise to the
Holocaust, today, national hate speech laws have increasingly been invoked to criminalize speech
that is merely deemed insulting to one's race, ethnicity, religion, or nationality. Under the guise of
tolerance and co-existence, Islamists have often manipulated such laws in a bid to monopolize
debate and define what is beyond the pale of permissible public discussion.
In large part, the movement to circumscribe the bounds of free expression has its roots in three
instruments of international lawthe European Convention on Human Rights (ECHR),
theInternational Convention on the Elimination of All Forms of Racial Discrimination
(CERD), and the International Covenant on Civil and Political Rights (ICCPR). Article 10 of the
ECHR, for example, grants the freedom of expression to all, but the exercise of this right is
conditioned on conformity with the restrictions necessary, inter alia, "for the protection of the
reputation and rights of others." The CERD and ICCPR, which also purport to recognize the freedom
of expression, go a step further. Article 4(a) of the CERD obligates signatories to make "all
dissemination of ideas based on racial superiority or hatred" a punishable offense, while Article 20
of the ICCPR requires outlawing "any advocacy of national, racial, or religious hatred that
constitutes incitement to discrimination, hostility, or violence."
Given the nebulous standards on which much of Europe's hate speech laws are basedindeed,
there is not even a universally agreed upon definition for what constitutes hate speechit is little
wonder that such legislation has ensnared speech it was likely never meant to punish. Delineating
the line between speech that is considered rude and that which is considered insulting for the
purposes of criminal prosecution is an utterly subjective undertaking, and a distinction that
governments are ill-suited to determine. Compounding the problem of these laws' arbitrariness is
their selective application: while European authorities have at times appeared reluctant to go after
Islamist firebrands spouting hatred, those engaging in legitimate debate about Islamism are
frequently targeted for prosecution. Examples abound:

Denmark: Article 266(b) of the Danish Criminal Code criminalizes "expressing and
spreading racial hatred", making it an offense to use threatening, vilifying, or insulting
language intended for the general public or a wide circle of persons. In 2001, several
Danish politicians were convicted under this provision for allegedly making "anti-Islamic"
statements. More recently, in June 2010, the Danish crown prosecutor sought to lift MP
Jesper Langballe's parliamentary immunity so that he could face charges under Article
266(b) for publishing an article about the creeping "Islamisation of Europe" and the
subjugated status of Muslim women.

France: France's principal piece of hate speech legislation is the Press Law of 1881, in
which Section 24 criminalizes incitement to racial discrimination, hatred, or violence on the
basis of one's origin or membership (or non-membership) in an ethic, national, racial, or
religious group. A criminal code provision likewise makes it an offense to engage in similar
conduct via private communication.
Such laws have been deployed against individuals across a broad swath of society. In 2002,
four Muslim organizations filed a complaint against author Michel Houellebecq for stating
that Islam was "stupid" and "dangerous" in an interview. Although the
court acquittedHouellebecq, it refrained from doing so on free speech grounds. In 2005,
politician Jean Marie Le Pen, runner-up in the 2002 presidential election, was convicted of
inciting racial hatred for comments made to Le Monde in 2003 about the consequences of
Muslim immigration in France. And in 2008, actress Brigitte Bardot was haled into court
and convicted on charges of inciting racial hatred for her criticism concerning the ritual
slaughter of sheep during a Muslim feast. Bardot was ordered to pay 15,000, the fifth
time she was fined for inciting racial hatred against Muslims since 1997.

The Netherlands: Long considered a bastion for the freedom of thought and expression,
Holland has today joined in the European retreat on free speech. Together, Articles 137(c)
and 137(d) of the Dutch Criminal Code operate to prohibit making public intentional insults,

as well as engaging in verbal, written, or illustrated incitement to hatred, on account of

one's race, religion, sexual orientation, or personal convictions. The most prominent hate
speech case to date is that of politician Geert Wilders, who was indicted by the public
prosecutor in 2009 for his public comments about Muslims and Islam, and his release of a
short film documenting inflammatory passages in the Qur'an.

United Kingdom: Sec. 18(1) of the Public Order Act of 1986 (POA) states that "a person
who uses threatening, abusive, or insulting words or behaviour, or displays any written
material which is threatening, abusive, or insulting, is guilty of an offence if: a) he intends
to thereby stir up racial hatred, or; b) having regard to all the circumstances racial hatred
is likely to be stirred up thereby." Among the panoply of other British hate speech laws is
Section 5 of the POA, which makes it a crime to use or display threatening, abusive, or
insulting words "within the hearing or sight of a person likely to be caused harassment,
alarm, or distress thereby." Indeed, it was under this incredibly low threshold that Christian
hoteliers Ben and Sharon Vogelenzang, accused by a Muslim patron of calling Muhammad a
"warlord", were charged, but ultimately acquitted, in 2009. Conversely, Harry Taylor, an
atheist who placed drawings satirizing Christianity and Islam in an airport prayer room,
wasconvicted in April 2010 under Section 5 and given a six-month prison sentence.

The Legal Project has tracked the challenges posed by Europe's national hate speech laws to free
speech, educating policymakers and the general public about the danger through op-ed articles,
speeches, and blog commentary. The Legal Project has also worked to inform the legal community
about the problem through its new Continuing Legal Education course, Suing the Messenger: The
Misuse of Law to Suppress Free Speech Regarding Terrorism, Radical Islam and Related Topics.