The Appearance of the Clear and Present Danger Doctrine In Hungarian Hate Speech Laws and the Jurisprudence of the European Court of Human Rights

Abstract

The restriction of hate speech is one of the thornier problems facing modern democracies today, involving as it does a contradiction between constitutionally guaranteed freedom of speech and the necessity to protect individual rights. By contrast with the American concept of the freedom of speech, the overall European approach holds that hate speech may be restricted in general, although in Europe, too, constitutional guarantees exist which protect even racist or hateful speech, and these must be observed. The dispute is perhaps even more marked in the new democracies, where the new foundations of the modern freedom of speech law had to be established in a short space of time as various social tensions that had been concealed under the previous dictatorship boiled to the surface following the transformation of the political system. In this paper I will argue that the doctrine of clear and present danger, as formulated by the US Supreme Court, is also applicable in respect of hate speech, although it has yet to become a widespread norm in European constitutional thought. In Hungary, however, the Constitutional Court attempted to introduce this doctrine during the several examinations of the constitutionality of the provision on the restriction of hate speech, and the doctrine has also appeared in the practice of the European Court of Human Rights (hereinafter: ECtHR) within certain individual judges’ opinions. This paper first reviews the major phases of the evolution of the doctrine in the US (Section II), and then describes its emergence in Europe, using the example of Hungary (Section III) and the ECtHR (Section IV).