Coercing Communities or Promoting Civilised Discourse? Funeral Protests and Comparative Hate Speech Jurisprudence

摘要

Extreme speech forms pose acute questions for liberal democracies. Abstract, non-absolute constitutional commitments to freedom of speech/expression are required to be interpreted against countervailing values such as equality, privacy and social harmony. On this side of the Atlantic, the rich body of First Amendment analysis generated by the US jurists is frequently dismissed as an outlier among the group. The emphasis there upon individual freedom and distrust of state power is said to miss the collective dimension of human existence and the rightful role of the state in promoting caring, empathetic communities. In what follows, tensions between the United States and UK/European attitudes towards the limits of constitutional protection for speech are analysed through the lens of the US Supreme Court’s ruling in Snyder v Phelps. I argue that, despite the undoubted nastiness of the speaker’s words and intentions in that case, the more censorious European response to such abuse is underpinned by a troubling attempt to enforce a degree of homogeneity upon political discourse. The state’s aim in so coercing may appear benign. However we should not lose sight of the fact that, so empowered, temporary political majorities may impose a range of speech restrictions that ultimately diminish personal autonomy under the guise of advancing the common good.