29th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR)
University of Lucerne, 7 -13 July 2019
Special Workshop: Democracy, free speech and minorities
Covenor: Prof. Oscar Pérez de la Fuente (Carlos III University of Madrid). Personal website: http://www.oscarperezdelafuente.com
Free speech laws are special in that they are dependent on different legal cultures. The American -negative liberty- approach and the German -positive liberty- approach to free speech are not the same. This is especially important from a minorities’ perspective because members of the minorities are victims in free speech issues such as hate speech, religious insult, limits of humor and right to protest.
The internet is a new scenario for democracy, diversity and free speech. These different legal cultures have different answers to free speech minority issues but internet rules mean free speech has a global dimension, as the Yahoo case has shown.
How can we strengthen democracy and protect the rights of minorities without undermining free speech? What kind of limit on free speech would be justifiable to protect minorities? Waldron presents the idea of dignity to reinforce that hate speech must be legally regulated.
In the Muhammad’ cartoons affair discussion, one of the arguments from the minorities was this case constituted a collective defamation and vilification of a vulnerable group. One of the cartoons was considered a form a hate speech because Muslims were targeted as terrorists.
On the other hand, limits on free speech and fears of censorship are the main classical concerns for liberal arguments. Restriction on free speech, especially political speech, must be especially justified in a democracy. Therefore, right to protest should be interpreted by the courts in board terms, not in a formalistic way.
An important issue on democratic legitimacy is how to treat people who don’t think like me or who are simply different to me because democracy is both the rule of the majority and respect for the minorities. Minorities and free speech are a good subject to test the quality of democracy in a society.
Social Sciences Journal, indexed in Scopus, will publish the Workshops communications of those authors who meet, and whose work meets, certain requirements. Full details are available by writing to the Covenor (email: firstname.lastname@example.org)
IVR Congress Website: https://www.ivr2019.org
Special workshop website: http://www.webphilosophia.com/2019IVR-workshop.html
Workshop final schedule
9 July, 11:00h-13.00 & 14.00-18.30, Classroom 3.B47
1.- 11:00h 13:00h
Democracy thrives on the open exchange of ideas. Diverse opinions and the free exchange of thoughts is the lifeblood of any representative governance. Dialogue facilitates political exchange and helps peoples with differing backgrounds and economic circumstances to better understand each other’s unique needs and their collective interests.
While free speech plays a foundational role in maintaining pluralistic institutions, other social interests, including equality, are also central to just governance. As with other constitutional values, speech sometimes comes in conflict with other core values. Some scholars of free expression, especially libertarians in the United States, reject the need to balance the liberty to assert opinions with countervailing concerns, such as equality, privacy, and dignity. That absolutist approach lacks contextual nuance essential to constitutional analysis. On the one hand, the arbitrary suppression of speech chills the exchange of ideas and favors some political preferences over others. On the other, where speech is not limited by carefully drawn legislation it can rise to threats and incitements that threaten the safety of others.
In the context of the Internet, regulators face new challenges of how best to address the global reach of terrorist organizations, xenophobes, antisemites, and the many other animus driven movements that rely on the platform to indoctrinate and instruct followers. On a comparativist level, much of the problem arises because web based hate groups often station themselves in the United States, where their comments are protected, and broadcast animus to countries like France, where laws recognize the dangers posed by extremist communications.
Worldwide democracies face a challenge of how to respond to the global reach of online supremacists. While safeguarding individual expression is a critical function of any fair government, so too is the obligation to safeguard individual expression. In cases arising from competing interests–such as when one party wants to say something provocative that is likely to defame another–lawmakers should weigh the value of free speech and countervailing value, including reputation. Speech is not an absolute but should be subject only to narrowly tailored laws, carefully crafted enough to achieve the stated polity aim while leaving ample room for discussing diverse opinions.
.- Andrés GASCÓN-CUENCA, University of Valencia, "Hate speech regulations and caselaw in Spain: Current challenges and pitfalls"
Hate speech against
individuals and groups that have been historically discriminated or
subordinated is on a rise, not only promoted by a part of the society, but
also by politicians that have incorporated it to their political
discourse. This reality poses a great challenge for our society, as these
speeches shake important cornerstones
in which our legal systems are based, such as dignity or substantive and material equality. Thus, there has been a reaction from international actors, such as the United Nations or the Council of Europe, in order to curtail and to face the negative consequences that hate speech has in the society by issuing recommendations to
member countries. So that, in 2015, Spain passed a modification of the penal code that introduced an extensive change in the article that punishes crimes committed on bias grounds and hate speech (510 CP), to adapt our legal framework to the current requirements brought by this new scenario to better protect minorities and specific
groups and associations.
Nevertheless, reviewing the almost four years of application of this new regulation some worrisome red flags are raised. Generally speaking, the interpretation of hate speech and hate crimes rules by courts is suffering from a significant drift. We find an important number of judgements that use them not to protect the people that
has been traditionally targeted by these behaviors, but to penalize political dissent and controversial opinions and thoughts that are not well received by society in general.
These major pitfalls entail, at least, two important consequences. Firstly, the undermining of the framework in which hate speech regulations are based and developed (as mentioned before, right to dignity and equality); and, secondly, a
perverse effect of legitimation of the discourses that foster and encourage alterity as a mean to restrict fundamental and human rights to certain groups of people.
Thus, the objective of this paper is twofold. Firstly, it is to deeply research and review the last five years caselaw that applies the article 510 of the Spanish penal code, in order to identify and to pinpoint the mentioned deviances on its application; and secondly, it is to critically analyze the results obtained in the first section, to suggest legal modifications to this regulation, in order to develop a better protection based on constitutional principles and rights for the people and the collectives that truly suffer from these kind of aggressions in their core human rights
Bella BEDIA BOTELLO, Universidad Autónoma de Madrid, "Freedom in
Popper’s Paradox of Tolerance: Conjugation of Practice and Theory"
The topics proposed for the workshop entail difficulties that are not as evident as could be imagine.
To get to concrete existence, we are required to get rid of the abstract. We cannot forget that all practice originates theory, and not the other way around. In this way, analysis is protected in the face of possible intellectual abuse, such as making a study so disconnected from existence that there be neither relation nor application to it. Even so, it is impossible and counter-productive not to conduct any theoretical analysis. All practice, all experience, has to be grounded on a clear foundation. Even more in cases in which people's lives and wellbeing are directly addressed. Philosophy must be committed, not detached to current problems and, certainly, not disconnected to existence.
Over the past years totalitarian opinions are appearing in religious and political spheres due to the general unhappiness on one part of the population. This produces problems in democratic countries: the reasoning of each person, either correct or incorrect, has to be respected as one more opinion because of personal freedom. But then, what do we have to do with totalitarian suggestions? Karl Popper effectively explains the paradox that comes to play: an excessively tolerant country runs the risk of losing its identity in the face of intolerant behavior if these actions are always permitted. Popper makes a clarification: intolerant philosophical conceptions must be allowed, but they have to be answered using proper rationality. Having said that, here resides a clear distinction between theory and practice. In order to have a balance in tolerance the key could be to accept all intellectual reflections restricting action. In that case another problem arises: who or what regulates acceptable actions? It is usual to use people’s freedom and rights as the limit, a sort of “my freedom ends where the others’ begins”.
2.- 14:00h 16:00h
I argue that under normal circumstances a state that is liberal, democratic, secular and multicultural should not use its legal apparatus to suppress the publication of cartoons like those that triggered the deadly terrorist attack on the premises of Charlie Hebdo in 2015, if it is determined to abide by its core values. Public endorsement of value pluralism and the importance of criticism in conjunction with the absence of an established religion imply that individual citizens are prima facie legally free to express their disapproval of particular religions or religious faith in general, through any means they consider appropriate including satire and ridicule. It is usually objected that this freedom equals the freedom to offend religious believers, which is inconsistent with our sense of decency and justice. Nevertheless, I am convinced that we need something stronger than the cause of offense to justifiably ban harsh religious criticism. I argue that if the above sort of criticism prevents its recipients from exercising their basic rights or it incites third parties to engage in criminal activities against the above individuals, it should be subject to legal sanctions. However, this is not the case with the cartoons contained in Charlie Hebdo, since as far as I can tell no basic rights of French Muslims were violated and no violent actions were committed against them as a result of their publication. It goes without saying that one is entitled to condemn material of this type, if she does not agree with its content; however, she cannot demand its censorship or the punishment of those responsible for it.
.- Tom HERRENBERG, Open University, The Netherlans, "Incitement and blasphemy: the case of E.S. v. Austria"
International human rights law is highly sceptical of ‘blasphemy laws’—laws that prohibit (typically by criminalization) the disparagement of religion and religious symbols. The Human Rights Committee, for instance, has stated in General Comment No. 34 that ‘Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant…’,  while the former UN Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt has stated that ‘In the human rights framework, respect always relates to human beings …. The idea of protecting the honour of religions themselves would clearly be at variance with the human rights approach.’
Yet, the European Court for Human Rights diverges from this approach to free expression. It has upheld a number of convictions by the national courts for blasphemous expression. Or, put differently, it finds blasphemy convictions compatible with article 10 of the European Convention on Human Rights. The latest of such convictions was upheld in October 2018 (E.S. v. Austria). This paper will critically examine the Court’s approach to blasphemy, specifically it’s reasoning regarding ‘incitement to religious intolerance’ and ‘stirring up prejudice and putting at risk religious peace’. Was there really a risk of religious peace being disturbed? What was, or what should the causal connection be between provocative statements and the possibility of social order being disurbed? In a democracy it is important to protect mniorities, but should they also be protected against offense? If we punish people for blaspehmy, they are exluded from participating in public debate about religious matters. In that sense, they are the victims of prosecution.
 Human Rights Committee, ‘General comment No. 34’ (2011) UN Doc. CCPR/C/GC/34, § 48.
 Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt (2013), UN Doc. A/HRC/25/58, § 33.
 European Court of Human Rights, 25 October 2018, Application No. 38450/12, par. 7.
In today’s postcolonial Europe, racial discrimination is categorically prohibited in legal terms. Nevertheless, symbolic power structures still do racialize certain cultural communities by establishing a semantic relationship between moral behavior and ethnic belonging. By doing framing analysis applied to the Spanish journalistic field (period 2010/18), this paper spells out a repertoire of images, lexicon and social scenarios that frame the Romani identity within the marks of violence and criminality. Such a framing highlights a specific area of antigypsyism, which has legitimated policies of urban segregation and systemic dynamics of social exclusion. The mise-en-scène aesthetic of cultural distancing and the over-representation of Roma in crime chronicles, it creates a public perception of fear towards the (fictional) Romani subject. My analysis deepens into the variables on which news narratives put into play a construction of the Romani character as a public danger; understanding that informative journalism constructs dually the identification of a social problem and an assignment of blame.
.- Ruzanov ILLYA, Samara, Russian Federation, "Postindustrial society and freedom of information stream"
Information is one of the most important values in the postindustrial society. Moreover, one can even call it an asset as it can help to make a successful investment or to promote a business. Therefore, freedom of speech, at least in theory, must become even more appreciated value today, because it assists the stream of information.
However, information is a tool and like any tool, it can be used negatively. The bright example of this idea is an incident occurred in the USA in 2013. Somebody spread false information about an explosion in the White House and claimed that Barack Obama was wounded. It could be treated just like an anecdote but it caused decline of Dow Jones companies’ capitalization for 200 billion dollars.
In the light of mentioned above the statement is that freedom of information stream trespass is not just a legal problem anymore. It is an economic issue, which influences the great scope of human rights. Freedom of information misapplication can violate a private property right – this point seems paradoxical, however it is a reality of postindustrial society. The same could be said about the mental aspects. Thus, couple decades ago the Muhammad’ Cartoons case could be beyond the public attention, but thanks to the Internet it became the very center of public discussion.
This “new reality” puts forward new challenges for legal science. To deal with this problem it has to introduce some new tools. Concerning freedom of information it is necessary to make its clear limits. One should remember that freedom implies responsibility. The limits of freedom and the principles of responsibility for its misapplication are worked out in this paper.
In conclusion it should be said that postindustrial society makes us to reorganize some basic rules and principles. The freedom of information flood is not an exception in this sense.
Session 3.- 16:30h -18:30h
Jorge CREGO, Universidad Internacional de la Rioja (UNIR),
"Self-respect and hate speech: A Rawlsian approach to the harm in hate
Since the appearance of different theories that consider that utterances can harm people, there has been a profound discussion on the actuality of this idea. Specifically, there are reasonable doubts on what is the legitimate good wounded through the utterance of speech, and why it defeats the interest in protecting speech.
Waldron defended in The Harm in Hate Speech (2012) that dignity can be compromised by hate speech. Some scholars, such as Seglow (2016), have specified this statement, affirming that it is self-respect that is wounded by hate speech. Self-respect, as presented by Rawls (1971), includes (i) a person's secure conception that her conception of her good, her plan of life, is worth carrying out, and (ii) confidence in one's ability to fulfil one's intentions.
This communication aims to evaluate the idea that self-respect is harmed by hate speech, and that this harm is enough to defeat the widely accepted right to free speech. Briefly, if self-respect is essential for an individual to become a moral person and enjoy her rights, any speech that could jeopardize the self-respect of a subject would become relevant harm, trampling her capacity to act as a moral person. Moreover, the communication will assess the institutional, collective and individual bases of self-respect, and study how different responses to the harm of hate speech can cope with the risk of demeaning self-respect.
First, a clear conception of Rawlsian self-respect is presented. Afterwards, a brief explanation of hate speech and the most known arguments defending its capacity to harm is exposed, in order to continue pointing out how this harm affects self.-respect and, therefore, degrades the moral personality of the addressee. To conclude, some remarks on the institutional and collective solutions are evaluated. The main conclusion is that in order to avoid the risks of "governmental incompetence" (Schauer, 1982), the easiest solution is to encourage respect and collective responses against hate speech as the best means to protect self-respect of potential addressees.
Oscar PÉREZ DE LA FUENTE, Carlos III University of Madrid, “On
Multiculturalism criticises the argument that majority values are commonly considered normal while minority values are viewed as inferior and deviant, and long has belonging to a minority been seen as a stigma. It supports the politics of difference, which encourage own identity characteristics in a political dimension based on liberation or pride. The collective representation of the minority identity has become political. If it is accepted that language shapes reality, this could explain the basis for political correctness.
Politics of identity has to face stereotypes and prejudices against minority members. Majority members have individual characteristics while minority members share collective identity traits. Political correctness could help to erase those negative images of minority members by using less potentially offensive language.
Political correctness has sometimes been portraited ironically, but if used to excess could result in significant restrictions to free speech and academic freedom. Is it right to joke about any given topic without limit or should political correctness always have something to say? It is right to create literary or artistic works without being politically correct or should they always apply those principles?
On academic freedom, this aspect is particularly crucial. Should research on psychological or genetic differences between sexes or races be permitted? Is it possible for a prestigious scholar to defend their non-politically correct views on morality? Is it possible to rate degrees of political incorrectness?
The pros and cons on the role of political correctness could become a genuine debate in each democratic society. The expected consequence is that the situation of minority members, and their collective representation, improve, although sometimes this does not happen. There are more disadvantages on censorship and unique thinking than a robust understanding of free speech, closely linked with pluralism and democracy.
.- Juliana de Freitas
DORNELAS, University of Lisbon, Portugal, "Balancing approach between
freedom of speech, honor and dignity on the democratic process".
This paper intend to analyze the normative conflict between freedom of speech in political advertising and the prohibition to offend the honor of a certain group.
For that, will be made an analysis of a case involving electoral propaganda, occurred in 2014, in the State of Rio de Janeiro, in which two candidates assembled and distributed pamphlets with offensive manifestations to several people, especially homosexuals, prostitutes and drug addicts, claiming, along other affirmations, that homosexuals shouldn’t adopt kids because they are mentally ill.
With this background, the
present study analyzes what should prevail, the candidates freedom of
speech or the honor of homosexuals, meaning it stigmatizes them as
incapable of adopting a child and being a bad influence to society.
The analysis starts with the distinction of two constitutional norms, the application of the weight formula for the purpose of resolving the normative conflict, taking into consideration whether they are constitutionally defined as principles (freedom of expression and inviolability of honor) that deserve to be protected from a rational argumentative construction of normative precepts.
On one hand there is the
prohibition of any censorship in political manifestations, which leads
to the exercise of free speech. In this case, in addition to free
speech, the democratic precepts are analyzed for it is importance for
the electorate to have maximum knowledge of the ideas of those who run
for representatives of the nation. On the other, no person should have
his or her honor violated, since there's also a norm that forbids the
violation of honor, private life and image of any person.
Both are, therefore, constitutional principles that, though unreservedly, become restricted for the need of protecting more important assets for the development of society and the defense of the human dignity.
The aim of this work is to
construct a critical argumentative structure in order to apply, beyond
the strengthening of constitutional principles, the consolidation of a
strong juridical order in which freedom of speech, the democratic
precepts and human dignity can coexist and be protected in every