Tanya Kateri Hernandez (Fordham University School of Law) has posted Hate Speech and The Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models (University of Pennsylvania Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
In Latin America, like many countries in Europe, hate speech is prohibited. Yet, Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discussion is captured by the binary comparisons between the advisability of Europe’s hate speech regulations as opposed to the United States free speech acceptance of hate speech. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, are undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise in the occurrence of hate speech worldwide.
Expanding the transnational hate speech discussion to incorporate the Latin American context, can help to provide insights about which legal structures are pragmatically more effective. For persons of African-descent frequently subjected to the blows of racist hate speech in Latin America, there is little effective enforcement of the criminal law sanctions that predominate. In contrast, civil law remedies have shown greater success at responding to the harms of hate speech.
This Article begins by presenting in Section I, the social science research regarding the harms of hate speech. Section II then examines the international law sanctions against hate speech and the ways in which they have inspired Latin American hate speech laws. The enforcement of the Latin American hate speech laws will then be assessed in Section III, and the Brazilian litigation regarding the “Look At Her Hair” song lyrics will be examined as a case study in Section IV. With the benefit of the Brazilian case study, the Article then concludes that the predominant criminal law approach is a poor vehicle for regulating hate speech. What is needed is a framework for civil remedies that is better formulated to address the harms of hate speech and its hindrance to racial equality.