El discurso del odio y la libertad de expresión (especial referencia al ámbito político y artístico)

Abstract

The purpose of this doctoral thesis is to analyze hate speech as a limit to freedom of expression. In fact, the establishment of constitutional limits to the exercise of freedom of expression is not a current problem, but has always been present in the development of the constitutional State. In summary, a study is presented on hate speech, especially in the political and artistic spheres, clearly differentiating it from freedom of critical expression, although the latter have annoying, offensive and even irritating content. The main reason for the research is that, especially in European society, the concern about so-called hate speech and its particularly restrictive impact on freedom of expression has become relevant and growing. Hence, this analysis of the conceptualization, characterization, and regulation. Given that this type of expressions or manifestations can be presented in ordinary communication, the question arises what type of manifestations or expressions can be protected by freedom of expression, and which, on the other hand, are really hate speech, which will act as a limit to the expression freedoom. The problem becomes especially serious when there is a conflict between rights. The application of the principle of proportionality remains a preferential criterion when resolving such conflicts. First of all, with a judgement that takes into account contextual factors, such as the communicative action, the sender and receiver, its incidence, etc. The evolution of jurisprudential in recent years has led to an expansion of criminal law, with a move towards the thesis of militant democracy and a correlative distance from an open or neutral constitutional democracy. This had leto to some situations that have been highlighted by specialized doctrine. On the other hand, there have been court rulings that make the difference between artistic or political speech and hate speech. Without a definitive solution, there are some clues to avoid confusion. Insofar as this has led to the incorporation into the legal system of specific criminal offences - hate crimes - that incriminate this type of discourse. Although this regulation finds support in Framework Decision 2008/913/JAI, it raises serious doubts as to its legitimacy in the system of rights and freedoms based on values such as pluralism and tolerance. It is questionable whether hate crimes are compatible with freedom of expression. Evidently, the specification of legal criteria to delimit hate speech that should and should not be prima facie protected by freedom of expression Subsequently, while agreeing that hate speech is a limit to freedom of expression, we consider to what extent these types of offenses can be applied and interpreted by judges, being respecting of constitutional-criminal principles. In addition, we formulate proposals of lege data for the modification of the arts. 510 and 578 CP. In short, there is a desire for a public sphere that is free and committed to values, as a fundamental axis of a democracy , which favors the free exchange of ideas, without allowing speeches to harm the dignity of certain groups or directly encourage violence. The trivialization of hate speech cannot cause greater damage to freedom, at the cost of overprotecting of other, extremely important rights. From this perspective, the importance of free speech leads us to affirm that it can only be restricted when circumstances demonstrate that there is a clear and imminent danger for individuals or society.