In 2006, seven members of the far right-wing Westboro Baptist Church* undertook an anti-gay protest at the funeral of Albert Snyder’s son, who had died earlier that year serving in Iraq as a Lance Corporal for the US military. Mr Snyder filed a civil claim against the Church, after which he was variously awarded damages or had the matter dismissed, depending on the court. The case appeared today before the United States Supreme Court, where the First Amendment rights of the Church’s founder and pastor, Fred W. Phelps, Sr. will be put in opposition to Mr Snyder’s tortious claims. During the proceedings yesterday, judges hinted that although they disapproved of the actions of Mr Phelps and his posse, they would have little choice but to find in his favour.

Meanwhile, some 6195 kilometres away in Amsterdam, the trial of controversial anti-Islam Dutch MP Geert Wilders has begun, wherein he is facing charges of inciting hatred and discrimination and giving religious offence to Muslims. Mr Wilders, who is the beneficiary of 24-hour police protection due to public anger at his populist policies, is liable to receive up to a year of incarceration or a €7.600 fine if convicted. Amongst other things, he has likened the Qur’an to Hitler’s Mein Kampf and described Islamic culture as “retarded”:

“I have had enough of Islam in the Netherlands: let there be no more Muslim immigrants. I have had enough of the worship of Allah and Mohammed in the Netherlands: let there be no more mosques. I have had enough of the Koran in the Netherlands: let us forbid that fascist book. Enough is enough.”

As a result of these views, his new role in the Dutch coalition government has led to it announcing plans to halve immigration and ban the burqa. Previous complaints in relation to his iconoclastic and racist statements have not gone to trial as the Netherlands also provides for freedom of speech in its constitution. As Mr Wilders declared:

“[I am] being prosecuted for believing there is something uniquely Dutch under attack that’s worthy of being preserved. The same could be said about that which is Italian, British, German, Spanish, Danish, Swedish, French or American. That [I face] trial for this belief shows [that] some aren’t willing to have this discussion, but all countries will face it eventually. Western tolerance shouldn’t be a suicide pact.”

Paradoxically, Mr Wilders has announced that he is exercising his right to silence during the proceedings, much to the annoyance of the trial judge, despite the fact that his case rests on his right to free speech.

Each of these cases demonstrate a dilemma in the legal system of western countries. In endeavouring to protect the rights of the people, a legislative body must determine to what extent somebody’s right to free speech impinges on another’s right not to be the subject of speech that is clearly offensive or incites either hatred or violence. This was described by Rodney Smolla as “the most intractable and difficult problem in speech theory” in Free speech in an open society. Critics of hate speech law cite what John Stuart Mill called “the tyranny of the majority”, arguing that it is the opinions of the majority rather than purely objective views that are imposed on everybody. Mill argued in his treatise On Liberty that unorthodox ideas must be permitted in public discourse for the sake of debate, as without such ideas one could not ever conduct complete discussion. He claimed that individual expression was akin to thought in that it should be afforded special protection from government regulation.

In contrast to this, international agreements such as the International Convention on the Elimination of Racial Discrimination have induced hate speech statutes in many jurisdictions, although the presence of a right to freedom of expression in that Convention abated the extent to which these laws affected freedom of speech. The United Nations Human Rights Committee has made it clear that the right to free speech does not extend to “racial or religious hatred”. Although most developed countries have enacted hate speech laws, they are rarely in the constitution, Bill of Rights or similar law (including the Human Rights Act 1998 in the UK) whilst the right to freedom of expression is frequently included therein.

There is little doubt that the rights to free speech and not to be subject to hate speech are competing interests that must coexist for the sake of society. The means by which this is to be completed and the extent to which each right should exist is a problematic and ultimately a highly subjective one. Multiple countries, including Canada, provide that expression must intend to cause harm in order to qualify as hate speech, which is a more moderate approach than is employed by many other jurisdictions. The imbalance inherent in the fact that only South Africa has provided constitutional provisions relating to hate speech and how it relates to the right of free speech indicates that free speech is still considered a priority, perhaps due to its history as a right extending back to ancient Greece. Despite this, law around the world is gradually changing to reflect the developing view of societies that hate speech cannot be tolerated in modern and multicultural communities.

*Note the creative URL