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.