Rule of Law and Hate Speech: The Role of Criminal Law in the Realm of Free Speech (Part 1)

The present contribution aims at analysing some crucial issues concerning the new pathways in the reflection relating to the use of criminal law in tackling the most serious forms of the so-called hate speech. It is structured in two different parts. This first part intends to investigate the existence of a common understanding of hate speech and to identify the most significant features of the criminal phenomenon usually described as hate speech. In this respect, the legal framing of widespread and systematic forms of hate speech, examined by the jurisprudence of Ad-Hoc International Criminal Tribunals (ICTs) and International Criminal Court (ICC), will be briefly considered, in order to better understand different qualitative and quantitative dimensions such behaviours may take. Such analysis will be crucial to assess the forms of criminalisation in abstracto and their legitimacy, taking into consideration the general principles ruling criminal policy and their application by legislatures in setting up criminal offences aimed at punishing serious conducts of hate speech. The consistency of offences criminalising hate speech with the principles of harm, accessibility and foreseeability of criminal provisions, proportionality, culpability, and the extrema ratio clause, will be thus considered, taking in due account the need to protect freedom of expression, free press and freedom of association, that are essential to pluralistic and democratic societies. In this respect, a preliminary analysis concerning the legal interest(s) to be protected by such offences will be carried out, to better assess to what extent a balance as fair as possible between the mentioned competing valuable interests may be conceived. The final part of the work will focus on a comparative analysis of some criminal offences set out in the German and Italian legal systems in this field and their application by jurisprudence, aimed at assessing whether the pattern of the crimes of endangerment (and its different conceivable types according to legal scholars), basically chosen by both legislatures for many relevant offences, may be effective in tackling serious forms of hate speech, striking at the same time a fair balance between the above mentioned really valuable competing interests.