An important case on hate speech was recently decided by the CERD Committee, TBB v. Germany, dealing with the intersection or conflict between the prohibition of racial discrimination and the freedom of expression (thanks to Marty Lederman for the pointer). The case concerned an interview given by a Mr Sarrazin in a journal that contained derogatory and offensive statements against the Turkish population in Germany; the statements were however given in the context of at least a superficially reasoned discussion dealing mainly with the economy. The TBB, a Turkish association in Germany, wanted Mr Sarrazin to be prosecuted for hate speech; the German prosecutors refused to do so, finding that while some of S’s statements were offensive, a prosecution would under the circumstances run afoul of the freedom of expression.
Article 4 CERD explicitly requires states parties to ‘declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred'; however when doing so they must give ‘due regard to the principles embodied in the Universal Declaration of Human Rights,’ including the freedom of expression. The Convention itself thus even at the purely textual level creates a potential conflict between the duty to incriminate hate speech and the freedom of expression, without providing much guidance as to how this conflict can be resolved. Text aside, the same set of issues is of course raised under other human rights treaties, such as the ECHR and the ICCPR, or in the domestic context.
In its views, the Committee found a violation of the CERD, holding that Mr Sarrazin should indeed have been prosecuted for his speech. Whatever its merits, I think it is fair to say that the Committee’s reasoning is remarkably unsophisticated, contained as it is in a paltry couple of paragraphs (12.7-12.8). The Committee does not weigh openly any of the relevant competing policy considerations, nor does it refer to any comparative jurisprudence or to the wealth of academic writing on the topic. This lack of rigour is especially troubling because the Committee’s views are formally non-binding; without adequate reasoning, without a proper effort at persuading its audience, the Committee can only diminish its own authority. If I was a German judge or prosecutor dealing with a similar case in the future I would be far more inclined to follow the dissenting opinion of Carlos Vazquez, who does an admirable job in analyzing the whole set of issues.
Like Vazques, what I find most troubling in the Committee’s views is the total lack of any deference to the judgment of the national authorities, which the Committee’s members simply disregard and replace with their own assessment, based (as far I can see) on little else but gut feeling. Even if one is not a free speech fundamentalist and thinks that the suppression of hate speech by criminal prosecution is a good idea in some cases, there is still a very delicate balance that needs to be struck. National authorities are normally far better placed to assess whether, for example, the prosecution of a specific individual would only serve to publicize their bigoted ideas and spread them much further than they otherwise would have been (cf. the infamous Streisand effect).