Hate speech in the framework of freedom of expression

Freedom of expression entered the international legal texts after the Second World War and with the effect of the severe human rights violations. It includes the right to access thoughts, to disseminate thoughts and not to be condemned for them. The concept of hate speech, on the other hand, includes racial hatred, xenophobia, anti- Semitism, and can emerge in an offensive and discriminatory way towards minorities, immigrants, and immigrants. It also covers any form of expression that spreads, incites, encourages or justifies any form of hatred, including religious intolerance. Today, hate speech is seen as an exception to freedom of expression and sanctions are envisaged. The only exception to this acceptance is in the legal system of the United States. In the study, two extreme approaches that do not see hate speech as an 'expression' and argue that hate speech should be protected even if it hurts or offends its interlocutors are discussed in a comparative way. In the ECHR system, hate speech is excluded from the scope of freedom of expression and not accepted as 'expression' within the scope of the prohibition of abuse of right, according to the approach based on ECHR article 17. Accordingly, hate speech constitutes a violation of the values contained in the ECHR. This approach of the ECHR is mostly seen in applications about Holocaust denial today. On the other hand, it evaluates the intervention of the state party in the applications made on issues other than Holocaust denial within the scope of Article 10/2. With this approach, the ECHR strives to strike a balance between freedom of expression and hate speech. In the US system, hate speech is divided into two as previous and current approaches. According to the previous approach, hate speech is seen within the scope of fighting words' and 'acts of group libel'. It is widely believed that the regulations on hate speech in this period do not violate the First Amendment. The current approach, on the other hand, was introduced with the 1969 Bradenburg decision. Accordingly, strict control was applied to laws regulating hate speech and a clear and present danger criterion was applied. According to this approach, freedom of expression cannot be restricted because expression hurts or offends the values of victims. The aim of the study is to reveal the difference between the approaches of the ECHR and the US systems to hate speech. For this reason, in order to understand the concepts of freedom of expression and hate speech and how the relationship between them is interpreted, the decisions of the ECHR and the US Supreme Court are examined.