The Research On The Legal Regulation Of Hate Speech

Hate speech is a type of speech which is based on race, ethnicity, nationality, gender, religion and the other characteristics raises the discrimination and hatred between different groups under the guidance of the intention of hatred. Hate speech will not only cause psychological and physical harm to its targets, but also cause great harm to the entire community and violate the core value of free speech in substance.This paper believes that the difficulties in legal regulation of hate speech are mainly from the reversal dilemma of hate speech in theory and practice. On the one hand, free speech is a form of freedom, the restrictions and prohibitions of hate speech will violate the freedom of speech as a the fundamental right in substance. On the other hand, what hate speech expresses and transmits is not the useful information but the hatred, which is prone to cause conflict between different groups and impair both the interests of the society as a whole and the human dignity of the individual. Therefore, the freedom of expressing hate speech is not incompatible with the right of dignity, reputation, honor and equality protected by the Constitution and the law. It is necessary to restrict and prohibit the hate speech. This paper discusses the theoretical foundation of the legal regulation of hate speech from two aspects. Firstly, investigate the possible value of hate speech starting from the value of free speech. The reason why hate speech is valuable is that hate speech is a type of speech. Freedom of speech should be protected as a fundamental human right which has high social and political values. So hate speech may have some values. Secondly, investigate the main harms to society and individuals caused by hate speech. This paper carries on the research on the specific value of free speech, discusses the negative value of hate speech with recourse to Mill's Harm Principle, and then draws the conclusion that the legal regulation of hate speech would not undermine the value of free speech.Based on the property of freedom and harm of hate speech, there are two different approaches of the legal regulation of hate speech. One is based on the liberty, which focuses the value of liberty. The purpose of the legal regulation is to protect the free expression and free communication. The representative of this approach is the U.S., which advocates tolerating hate speech in order to protect free speech. The other one is based on the human dignity, which focuses the the harms caused by hate speech. The purpose of the legal regulation is to protect human dignity and equality. The representative of this approach is Germany, which advocates restricting hate speech in order to protect human dignity and tolerating necessary cost of freedom of speech. About the two approaches, this paper carries on research on the U.S. approach and German approach.The U.S. upholds freedom of speech as the foundation of the nation, advocates of high degree of protection to free speech, the core values of which are the free marketplace of ideas and the theory of discussion of public affairs, the core principle of which is the content neutral principle. By combing the related judicial practice, we find that the attitude of the U.S. Court is tolerating hate speech since 1940 the hate speech case come into courts. Although Court allowed the limitation on hate speech in the early cases, the Court began holding a relatively tolerant attitude to hate speech after the rise of the Civil Rights Movement since the 1960's. In recent years, there are some minute adjustments of the tolerant attitude, but the fundamental position of the U.S. court has not changed in substance. It is also in the process of tolerating hate speech-- restricting hate speech-- tolerating hate speech, the U.S. court developed a lot of judicial technologies and theories to deal with the legal regulation of hate speech. For hate speech, the U.S. Supreme Court regulated it as group libel in Beauharnais v. Illinoisin, regulated it as the incitement immediate illegality in Brandenburg v. Ohio, regulated it as fighting words in R.A.V. v. City of St. Paul, regulated it by the principle of True Threat in Virginia v. Black.The historical influence of Nazi is far-reaching, the hate propaganda on racial discrimination and racial hatred by the Nazi regime lead the Holocaust, which caused a deep injury to German society. The public have a deep horror to hate speech, especially hate speech based on race. In this historical background, Germany holds that freedom of speech is not only a negative right, but also a positive right. The government should assume the responsibility in promoting and encouraging the benefit of discovering the truth, furthering democracy and restricting non-truth and anti-democratic speech. Hate speech in Germany does not recognize any value, which aims to prevent the alienation of the society and persons under the instigation of hate speech and reoccurring of the humanity tragedy following the historical precedent. German law makes it clear that the government could restrict hate speech as long as the racism information threatens the public safety and human dignity on a broad sense. German Constitutional Court has already established relatively mature guiding principles on the issue of hate speech. False statement on the objective fact unrelated to expressing thoughts should not be protected by law. The thoughts and value judgments the purpose of which is to desecrate and disparage human dignity should not be protected by law. In the judgments of hate speech cases, German Constitutional Court gradually develops the balancing principle to measure the value of free speech and the value of other constitutional rights.The U.S. approach stresses the value of liberty, the German approach stresses the value of human dignity, but it also appears some degree of convergence tendency in recent years. This indicates that in the legal regulation of hate speech, we need to reconcile the value of liberty and the value of dignity and combine the two approaches to find a intergration approach between the U.S. approach and the German approach, which is to protect the free speech but permit the limited restrictions on hate speech. The intergration approach is a minimum regulatory approach which is in accordance with the realization the right of free speech and a realistic option for the other countries to deal with the problem of hate speech.