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Res Publica (2011) 17:4153
DOI 10.1007/s11158-011-9142-6
Eric Barendt
Published online: 1 February 2011 Springer Science+Business Media B.V. 2011
Abstract This article examines the issues raised by recent legislation proscribing incitement to religious hatred. In particular, it examines how far arguments for prohibiting racist hate speech apply also to the prohibition of religious hate speech. It identies a number of signicant differences between race and religion. It also examines several questions raised by the prohibition of religious hate speech, including the meaning and scope of religious identity, why that identity should receive special protection, and whether protection should be directed to religious groups as groups or to their individual members. The central argument of the article is that the distinction between protecting religious groups from vilication and protecting their beliefs and practices from criticisma distinction on which the British Government placed great emphasis in defending its legislationis unsustainable. That conclusion is supported by the reasoning of the European Court of Human Rights in cases in which it has upheld the curtailing of freedom of expression for the sake of protecting religion.
Keywords Incitement to religious hatred Hate speech Freedom of expression
Religious groups Religious beliefs Religious identity
Introduction
The extension of the racial hatred offence in the public order legislation to proscribe incitement to religious hatred was ercely resisted both inside Parliament and in public debate. Indeed, with the possible exception of the more or less
E. Barendt (&)
Faculty of Laws, University College London, Bentham House, Endsleigh Gardens, London WC1H 0EG, UKe-mail: [email protected]
Religious Hatred Laws: Protecting Groups or Belief?
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contemporaneous institution of the new offence of encouraging and glorifying terrorism,1 the legislation has aroused greater controversy than any other recent development in freedom of speech law. On one view this is a little surprising. For the offence of incitement to racial hatred, rst put on the statute book in 1965,2 has been widely, though not universally, accepted in the United Kingdom as a legitimate restriction on free speech. In the view of many it is appropriate to outlaw speech which targets groups on the basis of their racial or ethnic identityeither because such speech in the long run may lead to a breakdown in law and order or because it...