Hate speech in public space: a view from the North American doctrine of clear and present danger

Abstract

This study addresses the debate about the constitutionality of legislation outlawing so-called hate crimes starting from an analysis of some of the most significant decisions in the United States Supreme Court case-law, rulings which follow a famously different doctrinal model than the European guidelines and case-law in this area (which is that currently followed by the Spanish Criminal Code). The study also identifies the possibilities and difficulties of application that exist within US case-law around the use of the doctrine of clear and present danger in this matter. It is an analysis that shows us a theory which, on the constitutionality of such expressive behaviours, can, with seemingly impossible duality, work as an (inadequate) applied instrument of the doctrine of hate speech, and at the same time, function as a construction with the opposite theoretical approach. This is a paradox that can only be resolved by identifying and differentiating the various models within the theory of clear and present danger, which is frequently and erroneously conceived of and explained as a single model.