Libertad de expresión, "hate speech" e incitación directa"Clear and imminent danger" desde las perspectivas de la Corte Suprema estadounidense y del Tribunal Europeo de Derechos Humanos

Résumé

The aim of this study is to approach the importance of the fundamental right to freedom of expression in democratic societies. A law recognized since ancient Greece, which has served as the basis for the reinforcement of the free marketplace of ideas, as the only instrument of democratic regeneration. But freedom of expression, as all rights and freedoms, has a negative view when exercised in an extreme way. That is why we have tried to approach a comparative study of the historical treatment of freedom of expression by various national and international courts and the limits they have established. To this end, we have initiated an empirical study of the most important decisions of the US Supreme Court, in which we have detected the different standards that they have adopted in the treatment of government restrictions on freedom of expression. Furthermore, we have analyzed the treatment that the European Court of Human Rights has been giving the same kind of excessive speech. Focusing more on the latter court, we have divided the different treatments into four parts, depending on the type of speech. The first dedicated to the importance of freedom of expression in Europe by the European Court. The second speech based on religious intolerance. The third dedicated to historical revisionism. And a fourth, larger, dedicated to national and ethnic hate speech, and to the spread of violent messages through mass media and political discourse. As a final assessment, having identified the importance of the free dissemination of ideologies and information in any democratic society, we believe that this can only be restricted in circumstances where there is a clear and imminent danger to society and people.