Per Incuriam Summer Edition 2021

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Rebecca McNeil/ I

Q9(b) 'Finally, bath the European Caurt af

ethical

Human Rights and English law recognise the

ind1st1nguishabil1ty

need ta address Inciting hatred based an

workable; proponents would argue that

Ve;deland articulate best by this was

sexual arlentatlan. These are Important and

sexual orIentatIon Is a relevant factor

needed,

pas/five developments, but much mare needs

to

preJudic1al horrors. It cannot af ford the

ta be dane ta ensure that this farm af hate

ethically.

speech Is addressed appropriately.' Discuss.

values

are

neutral

plurality.

Mark breakdown:

Both the

160

ECHR and

English law has

framework.

Justify

this may

dist1nct1on However.

of

as

idea

of

investigate

not

be

violate Art8. 14 and 13. The Judges in

treatment

the

increasingly this

ECtHR's

based

renders

rel1g1ous

on such

distinction

on

grounds

unJust1f1able

Furthermore. there is more

such

due

luxury

of

speech.

to

Europe's

an

necessitates

will

history

American

approach to free speech approach

they

of

absolutist A utilitarian

weight

to

be

given to the protection of historically marginalised groups in order to deter

recognised the need to address inciting

evidence to Justify d1st1nct1on In favour

future atrocItIes

hatred

of more protection for

substantive equality rather than merely

based

on

sexual

orientation

sexual minorities

This essay will discuss 1) why such an

than religious or racial groups. This Is

address was needed. ii) why this was a

due to the fact that less than half a

posItIve development and 11i) why more

century

needs to be done to ensure that this

effectively

ago.

their

1dent1t1es

criminalised

In

were

the

UK

This serves to ensure

formal equality.

Is this an important and positive development?

form of hate speech Is addressed on principled rather than political grounds

Similarly

on

inciting

the

hatred

European based

Is the need to address inciting

orientation

Is

hatred based on sexual orientation

addressed

Strasbourg

being

Ve;deland v Sweden

recognised?

on

plane.

Proponents

sexual

Dworkin.

recognised

and

exemplified

In

and Lll/iendahl v

of

free

speech,

such

as

would have argued that the

further cr1m1nal1sat1on of hate speech was an important but not a positive development

He argued that freedom

Iceland that they will not protect Art10

of

On the domestic plane. the IncItement

rights

democratic leg1t1macy of the other laws

for

hate

speech

which

Is

However.

by Part 3A of the Public Order Act 1986

democratic

strongly opposed the argument that we

was

mInorItIes

protect

minorities

Waldron would disagree

He

Penncek. the Grand Chamber held that

have

a fine

was Justified

paralleling this to the fact that we do

for

under Art10(2) and indicated that It is

not have to tolerate conduct that harms

Therefore, campaigners have

particularly 'sensitive towards sweeping

US.

principle.

needed

The

IncItement

of

hatred suffered by ethnic and religious has

decades

to

the

Justified under 10(2) as 'necessary In a

This

need

to

homophobic - such violations

In

we

crucial

of hatred based on sexual orientation

Furthermore.

that

Is

has been recognised and criminalised

society '

will be

expression

been

cr1m1nal1sed

for hate speech

rightly used

'cumulative Jurisprudence'

statements

(Heinze)

argue

negative light entire ethnic. religious or

to

or casting In a

tolerate

Indeed,

hateful

following

'liberty

speech.

Mill's

consists

harm In

the

as

sexual

the

same

other group [which appears to include

no one

oppression - it Is logical to extend such

the LGBTO community].' Bmzaras and

those to whom It Is directed to, It Is

minorities protection course.

that

attacking

to

suffer to

from

them

following

a

as

a

else;'

as hate speech harms

Of

Lev1ckas v Lithuania (2020) also showed

logical that such liberty of free speech

religious

that 1f domestic authorItIes refuse to

should be l1m1ted

group.

Western

freedom to do everything which inJures

14