The Volokh Conspiracy
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Hate Speech and the European Court of Human Rights: Hate Speech, Its Effects and the Question of Regulation
In this post I look at my book's key findings on the effects of hate speech and the controversies surrounding its regulation. This analysis lays out the groundwork for understanding both the harms attributed to hate speech and the dangers of over-regulating it in democratic societies. The central question is twofold: Does hate speech cause real-life harm? And if so, should that harm be addressed through legal restrictions on speech? The ECtHR systematically answers "yes," often without the depth of inquiry such a consequential response demands.
Hate speech and harm
One of the key contributions the book's chapter on hate speech, its effects and the questions of regulation is to unpack the multi-level impact of hate speech on individuals (micro), groups (meso), and society (macro). Drawing on work by scholars such as Mari Matsuda, Jeremy Waldron, Alexander Tsesis, and others, I trace how hate speech is said to erode dignity, reinforce systemic inequalities, and, in some contexts, incite violence.
As Matsuda has written, hate speech operates as "a mechanism of subordination reinforcing a historical vertical relationship," and its effects are "real and immediate" for those it targets. Tsesis, likewise, sees hate speech not merely as a personal insult, but as a vehicle for entrenching societal divisions and even fomenting mass violence. He links it to atrocities like the Rwandan genocide, where hate-filled broadcasts on RTLM radio incited mass murder. Quantitative work by Yanagizawa-Drott found that areas with more radio had noticeably higher rates of violence. A more recent example comes from Myanmar. A UN Fact-Finding Mission concluded that Facebook's failure to stem the spread of anti-Rohingya propaganda played a critical role in the 2017 ethnic cleansing campaign. The digital megaphone did not just amplify hate, it normalized it. Yet, despite these sobering examples, the causal chain between speech and harm is rarely straightforward. As Ronald Dworkin reminds us, claims about hate speech's harms are often "inflated and some are absurd." Empirical research remains fragmented and inconclusive. Heinze, for example, has noted that "despite decades of pro-ban law and policy … no empirical evidence has, in any statistically standard way, traced hatred expressed within general public discourse to specifically harmful effects."
Should the law step in?
The regulatory dilemma is as old as liberal democracy itself. Some scholars, Waldron, Matsuda, Tsesis, content that the dignitary and social harms of hate speech justify legal restriction. Waldron argues that hate speech undermines "the social sense of assurance on which members of vulnerable minorities rely," and should therefore be prohibited. For Tsesis, regulation serves as a bulwark against the normalization of dangerous inequality. Joel Feinberg holds that, the law should only intervene in cases of "profound offence" that are unavoidable, menacing, and morally reprehensible. Most hate speech, even if cruel or tasteless, does not meet that bar. To regulate it would, ironically, risk violating the very freedoms liberal democracies are meant to uphold. Nadine Strossen warns that hate speech laws are more likely to suppress the voices of the very people they are meant to protect. Eric Heinze contends that speech regulation undermines "the legitimising expressive conditions of democracy." Jonathan Rauch frames the issue powerfully: "bigoted ideas and hateful speech play an essential part in advancing minority rights. Even if we have every right to boycott Ender's Game, gays are better served by answering people like Card than by trying to squelch or punish them." This line of thinking views counterspeech, not prohibition, as the optimal response to hate. It also raises a practical concern: regulation can backfire. Banning speech often drives it underground, where it becomes more radicalized and less visible. It may also martyrize the speaker, deepening their cause. Another consequence of unavoidably and inherently selective hate speech regulation is what Eugene Volokh has termed "censorship envy." When certain groups receive legal protection against offensive speech, others inevitably ask: Why not us? This logic, if left unchecked, leads to a proliferation of competing claims to censorship. Instead of promoting equality, selective restrictions may generate resentment and deepen polarization.
The marketplace of ideas and its limits
The "marketplace of ideas" remains a foundational justification for robust free speech protections. From Mill to Justice Holmes, the belief has been that truth emerges from open contestation. But critics of this model, including Critical Race Theorists like Matsuda and Lawrence, argue that the marketplace is not neutral. Racial and economic inequalities distort participation, creating a system where dominant voices drown out the marginalized. This critique deserves attention. Lawrence discusses the silencing impact of hate speech on its target, by noting that it triggers an instinctive, defensive psychological reaction, characterised by fear, rage, shock and a tendency to flee, all of which hinder a reasoned response. He adds that many victims may not find words to articulate their experience 'until well after the assault, when the cowardly assaulter has departed.' While cognizant of the appalling psychosocial harm of hate speech, the book argues that the solution to such speech is not necessarily legal regulation. While I make the disclaimer that such solutions are suitable for violent speech, I argue that the problem of hate speech lies in structural conditions, not the speech itself. Regulating content will not address the root causes of exclusion; it may instead paper over them, while expanding the power of the state to police discourse.
The European Court of Human Rights and the dangers of militant democracy
The European Court of Human Rights (ECtHR) has used Article 17 of the European Convention on Human Rights (ECHR) entitled the "prohibition of abuse of rights" clause to deny protection to hateful or offensive speech. This article provides that "nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." The ECtHR's invocation of militant democracy, originally theorized by Karl Loewenstein, is intended to safeguard democratic institutions from anti-democratic threats. But in practice, the Court's reasoning has drifted far from those original aims. In Kühnen v Germany (1988), the ECtHR upheld a ban on neo-Nazi speech, explicitly invoking democracy's right to self-defense. But in more recent cases, the ECtHR applies vague standards like "the spirit of the Convention" (Pastörs v Germany 2019) or "Convention values" such as "tolerance, social peace and non-discrimination" (Norwood v UK 2004) without fully explaining how such values are defined or applied. This opacity matters. Article 17's expansion from a narrow anti-totalitarian provision to a broad license to ban speech deemed offensive undermines legal certainty and democratic legitimacy. By applying Article 17, the ECtHR does not conduct the legal test set out by Article 10 of ECHR which provides for the freedom of expression and its restrictions.
A call for caution and context
I do not deny that hate speech can cause genuine harm. From incitement to genocide to lasting psychological trauma, its dangers are real and, in some contexts, deeply destructive. Yet, the cost of regulation must not be underestimated. Legal restrictions on speech can give rise to censorship, repression, selective enforcement, and a growing distrust in democratic institutions. Instead of adopting a one-size-fits-all model, responses to hate speech should be sensitive to context. Key factors must be weighed, including the seriousness of the speech in question, the likelihood that it will incite violence, the broader social and political climate in which it is expressed, and the capacity of those targeted to defend themselves through public discourse. As I argue in the book, "not all hate speech is equal, and, therefore, not all responses, if any, should be equal." For that reason, legal regulation should be reserved for instances where speech presents a clear and demonstrable risk of inciting violence. In other cases, the more appropriate and democratic tools lie in counterspeech, societal condemnation, and, where necessary, structural reforms that address the root inequalities that allow such speech to thrive.
Conclusion
The ECtHR's growing willingness to restrict hate speech through a loose application of militant democracy reflects a worrying trend. Instead of grappling with empirical nuance and normative complexity, the ECtHR often defaults to abstract values and unproven assumptions. This does little to protect vulnerable groups, and much to weaken the foundation of free expression. A democracy that cannot tolerate offensive speech is one that cannot tolerate dissent. And a court that restricts speech in the name of vague values does little to safeguard the rights it claims to protect. The answer to hate speech is not always silence, and certainly not censorship. It is reasoned analysis, institutional courage, and a commitment to the messy, essential project of democratic dialogue.
