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18 Neth. Q. Hum. Rts. 195 (2000)
Freedom of Speech: USA vs. Germany and Europe

handle is hein.journals/nethqur33 and id is 195 raw text is: Freedom of Speech: USA vs Germany and Europe Aernout Nieuwenhuis* Abstract Racist utterances are treated differently in American law on the one hand and in German or European law on the other hand. This difference in approach leads to problems when it comes to assessing restrictions on free speech that are intended to combat discrimi- nation. These different approaches also tend to clash in cyberspace, the virtual world without borders. This article discusses in depth the difference between the American and the German or European approach. It analyses the relationship between free speech and democracy and examines the importance of the grounds for restrictions which may apply in the case of a ban on racist utterances. Introduction The right to freedom of speech is a fundamental right. This right is accorded extra significance by the link between free speech and democracy. Nonetheless, the importance attached to this fundamental right is not the same in every democracy. The approach in the USA contrasts with the German and European approach. This is most clearly shown by the treatment of racist utterances. In many European countries there is extensive legislation against racist utterances. Examples of banned acts are inciting hatred, insulting particular groups and denying the Holocaust. There are various arguments for such provisions. First of all, propaganda could create a racist majority view. Second, racist expressions could possibly lead in the short or long term to violence and discrimination. Third, they cause hurt feelings and resentment. And, fourth, such expressions can be regarded as a serious form of defamation. The provisions introduced in the European countries are not, according to the law of the countries concerned, at odds with the fundamental right of freedom of expression. By contrast, very few of these provisions would stand the test of the First Amendment to the US Constitution. This is because in the USA the Supreme Court has drawn very strict limits for restrictions on freedom of speech. The existence of two different approaches to freedom of speech gives rise to problems. Human rights groups that operate internationally, sometimes have to assess restrictions on freedom of speech that have been introduced to counter discrimination. The question then is how the right to non-discrimination relates to the right to freedom of speech.1 The same differences of opinion are also evident to some extent in the history of the establishment of the International Convention on the Elimination of All Forms of Racial Discrimination and .the reservation made by the USA when ratifying it. Problems are also occurring in the creation of a virtual world without borders. In some European countries there is great concern about Internet sites on which substantial amounts of racist material can be found Lecturer in Constitutional Law, University of Amsterdam. See, for example, M.H. Wiegandt, 'The Pitfalls of International Human Rights Monitoring: Some Critical Remarks on the Xenophobia in Germany', in: Human Rights Quarterly, Vol. 18, 1996, pp. 833-842; M. Fullerton, 'Human Rights Monitoring in Germany; a Rejoinder', Human Rights Quarterly, Vol. 18, 1996, pp. 843-847. Netherlands Quarterly of Human Rights, Vol. 18/2, 195-214, 2000. © Netherlands Institute of Human Rights (SIM). Printed in the Netherlands. 195