Hate Speech Laws: Communism's Poisoned Gift

The United States is the only developed liberal democracy without hate speech laws. Western Europe, the UK, and British Commonwealth countries all have different types. Australia’s are weak sauce; Germany’s, the opposite. This wasn’t always the case, though. There was a time when all liberal democracies turned their face against the very notion of “hate speech”.

The slow encroachment of hate speech laws began after WWII, borne of the USSR lobbying for their inclusion in international human rights treaties. This arose in turn because, in defeating Nazi Germany and Imperial Japan, the US, UK, and Commonwealth made common cause with the Soviet Union. The USSR was not only an erstwhile Nazi ally, but beholden to a form of totalitarianism even more murderous than fascism. 

The geopolitical and ideological circumstances of seventy-five years ago thus stamped themselves on multiple international treaties. This was no more so than with freedom of speech. Concepts like hate speech, racial vilification, and group defamation emerged from a wholly foreign (and now discredited) theory of governance. “Hate Speech” laws are fruits from a poisoned tree.

Article 19 of the United Nations’ 1948 Universal Declaration of Human Rights states unequivocally that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” 

The UDHR does not impose any obligations on states–it’s “aspirational”.

Yet, when the USSR participated in the UDHR’s framing in 1948, it stridently opposed a blanket statement in support of freedom of speech. During drafting (a process documented in the UDHR’s travaux préparatoires, a French legal phrase for “drafting history”), the Soviet delegation proposed this amendment: “freedom of speech and the press should not be used for the purposes of propagating fascism, aggression and for provoking hatred as between nations.”

The Soviet amendments were outvoted, and the Declaration was adopted in uncompromised form. But it was clear what the USSR was after. Communists did not see fascism as a distinctive political system with defined characteristics. They saw anything right-of-centre and even some left-liberal policies as fascist. “The term ‘fascism’, which had once had a definite meaning was now being blurred by the abuse of applying it to any person or idea which was not communist,” complained the Canadian delegation.

Dissatisfaction with the UDHR’s non-binding nature led to the 1966 International Covenant on Civil and Political Rights (ICCPR). Unfortunately, this also allowed the USSR and its Warsaw Pact colonies to take a second bite at the cherry, one that would push signatories to change domestic law. 

Like the UDHR, the ICCPR made a bold statement on behalf of freedom of speech (in Article 19): “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” 

Unfortunately, Article 20 followed: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” 

Article 20 defangs Article 19. 

Incitement to violence is a long-standing — and narrow — limit on free speech. Historically, however, it was never contingent on “national, racial or religious hatred”. Nor does incitement to discrimination or hostility have any roots in freedom of speech jurisprudence as it developed from classical antiquity onwards.

These restraints were promulgated entirely by the Soviets during the covenant’s drafting, representing a new limit on freedom of speech. The concept of hate speech was thus deliberately and explicitly political. Article 20 has its origins in a clash between two worldviews — that held by Western countries which supported individual civil liberties, and those held by the Communist bloc, which did not. Relatedly, those Communist powers that wanted to write hate speech provisions into international treaties did not mean well. 

The Western powers, consistent with their own traditions, proposed limiting restraints on speech to those that constituted an “incitement to violence”. The Soviet Union wanted to extend those restraints to “incitement to hatred”. According to the Soviet-aligned Yugoslav delegation, it was necessary to “suppress manifestations of hatred which, even without leading to violence, constituted a degradation of human dignity and a violation of human rights”. The Australian delegation objected to this, stating (with characteristic bluntness) that “people could not be legislated into morality.” 

This time, however, the liberal democracies lost the UN vote. The loss came about in part because the Soviets had made a much more effective play for developing countries’ affections over the previous decade, supplying their often corrupt and incompetent governments with arms and money. The liberal democracies don’t get off scot-free, however. Some of the worst third world dictators learnt their Marxist ideas in Western universities. Pol Pot — instigator and principal perpetrator of the Cambodian genocide — went to university in Paris and joined the French Communist Party.

In the two decades following the ICCPR’s ratification, Western signatories to the treaty adopted their own hate speech laws which prohibited, to varying degrees, “hatred” or “discrimination”. Such laws were only resisted fully (in the US) and partly (in Australia) because those two countries have distinctive civil liberties traditions that both pre-dated and were impervious to what became international human rights law. The US had its First Amendment, while in Australia, long-standing industrial relations legislation made it hard to sack workers for their political views. 

The movement to enact hate speech laws was a Communist bloc power play. It cynically exploited widespread, even global support for human rights and civil liberties as a fig-leaf behind which to hide suppression of political dissent. The restrictions were not intended to liberate minorities (as so many contemporary human rights advocates claim), but to restrain democracies. Hate speech laws are no more and no less than a poisoned gift from a failed ideology. And the rest of us are now chained to its corpse.

Helen Dale won the Miles Franklin Award for her first novel, The Hand that Signed the Paper, and read law at Oxford and Edinburgh. Her most recent novel, Kingdom of the Wicked, was shortlisted for the Prometheus Prize for science fiction. She writes for a number of outlets, including The Spectator, The Australian, and Standpoint, and has a weekly spot on TalkRADIO with Mike Graham. She lives in London and is on Minds @HelenDale65