Reframing Hate Speech

At a lecture in Norway in May 2015, the Harvard legal scholar Cass Sunstein called for a greater ‘empiricization of free speech thinking.’ And indeed, much scholarly literature on free speech as well as its proverbial ‘dark twin’, hate speech, is characterized by abstract and formalistic thought which is rarely contested or challenged by reference to actual empirical experiences with free speech and hate speech. Particularly noteworthy in this context is the absence of much reference to the empirical experiences with hate speech on the part of minorities whose dignity and rights to equal citizenship is according to scholars like Waldron (2012) targeted in and through hate speech. Scholars such as Bleich (2011), Gelber and MacNmara (2015) have however started exploring this through empirical studies. In this paper, I will argue that scholarship on hate speech, the law, legal practices and impact on targeted minorities stand to gain enormously on a shift towards comparative empirical studies. This might also be useful to a wider legal, political and administrative community at a national and transnational level, in as much as hate speech legislation and legal practices in contemporary Europe vary enormously and are often inconsistent and contradictory in the coverage accorded to various ethnic, religious or sexual minorities (Keck, forthcoming).