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Hastings Constitutional Law Quarterly

Authors

Craig Martin

Abstract

This Article engages in a comparative examination of three different approaches to finding the right balance between legal limits on hate speech and the right to freedom of expression. The Japanese and American systems have struggled to find both a sufficiently important purpose to justify hate speech laws, or an appropriate limiting principle to narrow their scope. Neither system views hate speech laws as implicating equal protection rights, and so the balance is heavily in favor of freedom of speech. The American doctrine views hate speech laws as justifiable only if they can come within other ill-fitting categories of lesser-protected speech, which are mostly concerned with imminent violence rather than equality or discrimination. Japan has enacted hate speech laws too weak to impact freedom of expression at all.

The Canadian approach does not find the perfect equilibrium, but it suggests a better way to strike the balance. Drawing on this comparative review, this Article argues that hate speech laws should be enacted with the object and purpose of fulfilling the constitutional guarantee of equal protection and equal treatment. Such laws would thus be narrowly drawn to prevent the fostering of hatred that would in turn lead to increased discrimination against identifiable groups, which are themselves defined in terms of the prohibited grounds of discrimination in the constitutional right to equality. The laws would address, and take seriously, the principle harms caused by hate speech-to the members of such groups, to the principles of equality, and to freedom of expression itself. But this objective also constitutes a compelling state interest, and a constitutionally informed basis for tailoring them narrowly, thus reducing to a justifiable minimum their impact on the right to freedom of expression. The right balance, then, is to be found in understanding and reconciling this tension between two constitutional rights.

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