Is hate speech defined in terms of an impartial principle?

Question

The term “hate speech” is frequently used in public discourse. I do not know if this is a legally defined concept, or if it is instituted by organizations like the Southern Poverty Law Center, for example.

Is there an impartial definition of hate speech which is meant to be evaluable based on certain attributes some speech act has, i.e. by a judge, as opposed to a sort of ad hoc list of forbidden speech acts that reflect the cultural norms and taboos of a society?

For example, while “hate speech” appears to be legal in the US (or, speech that does not directly incite people to acts of violence), it is illegal in Germany (Volkverhetzung) and Sweden.

Those laws appear to define hate speech in general terms, including a clause that basically states it is illegal to insult a particular social group:

…assaults the human dignity of others by insulting, maliciously maligning an aforementioned group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population…

This strikes me as problematic. Assuming it is not actually upheld in daily life that it is illegal to “malign”, say, an ethnic or a religious group, it appears that if the law is actually attempted to be formulated in terms of general principles, it is not successfully enforced or implemented that way. For example, some debate has gone on regarding Quran burnings, which I read “was protected by Swedish laws about the freedom of expression”.

So: is “hate speech” an intrinsically definable and regulable legal concept, or is it de facto basically a dominant culture in society deciding somewhat democratically what values / opinions are considered wrong and to be made legally forbidden (i.e. Nazism)?

Answer 1

"Hate speech" is a general term used in English media to refer to classes of legal prohibitions (actual or proposed) that tend to have something in common. As far as I know, no country has a law that says "Ye who utter hate speech shall be imprisoned", instead, the law will characterize the prohibited act in objective terms. In Germany, §130(1) of the criminal code says that

Whoever, in a manner suited to causing a disturbance of the public peace, 1. incites hatred against a national, racial, religious group or a group defined by their ethnic origin, against sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population, or calls for violent or arbitrary measures against them or 2. violates the human dignity of others by insulting, maliciously maligning or defaming one of the aforementioned groups, sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population incurs a penalty of imprisonment for a term of between three months and five years.

You will note that actual speech is not a defining property. There are numerous concepts which this law depends on which are open to the question "but how do you determine that hatred was actually the result", but this is a typical problem of all laws, that at some point, the law doesn't try to micro-define "hatred" (or "incite", or "racial").

It is a general premise of all legal systems that the government can enact any prohibition that it wishes, unless the government has prohibited itself from enacting a certain kind of prohibition. Prohibitions against viewpoint-expression is strongly protected in the US, and not at all in North Korea, you can slot Sweden and Germany somewhere between the two (closer to the US). Even in the US, not all speech is legally permissible, for example fraud and death threats are forms of speech that are legally prohibited. A balancing must be done between the prohibition against the government restricting speech, and other prohibitions against individuals doing things.

Laws typically do not attempt to exhaustively enumerate the set of referents in the text, it is taken to be clear what "national, racial, religious group" is; or what "hatred" is. This is clearly false since "hatred" is very different from "looking askance at". In the US, this is what case law is all about, in Germany, it is up to the judge to make that judgment.

Answer 2

“Hate speech” will be objectively defined within a given jurisdiction

In new-south-wales the crime is known by the snappy name of “Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status”. It requires a public act that threatens or incites violence towards a person or group of persons having the characteristics in the name of the offence.

Anything said in private or anything short of threatening or inciting violence is not a crime.

Other jurisdictions will have different thresholds. For example, in the united-states the threat of violence must be “imminent” which is not required in NSW - distant violence is also prohibited. Notwithstanding, wherever the line is drawn, it is objective.