THE “HATE SPEECH” IN THE U.S. AND THE EUROPEAN SYSTEM. TREATMENT OF RACISM AND XENOPHOBIA IN THE DRAFT CRIMINAL CODE REFORM

Abstract

The memory of the Holocaust has influenced European countries to regulate crimes that sometimes collide with the core of freedom of expression. Thus, a contrast between the conception of this fundamental right in the U.S. system and the continental is clear, especially regarding judicial interpretation of “fighting words”. However, even in regimes like the German model with a “militant democracy” (“streitbare Demokratie”), materials limits are set to punish racist or xenophobic behavior, so that mere “denial” is not punished, since it would collide head-on with that fundamental right. The criminal code reform gathers in one article all forms of promoting or inciting hatred, discrimination, violence or hostility, due to racist or discriminatory motives and punished actions are extended, according to Sentence 235/2007, on 7th November, of the Spanish Constitutional Court and following several European directives, with some influence of German law. The result is a list of offenses that are not always suited to the dictates of the principle of proportionality.