On the Regulation of Racist Speech

& GUO Min

Abstract: The legal regulation of racist speech involves limitation on the freedom of speech,which requires prudent trade-offs between freedom and quality∙ The protection of the freedom of speech,although of great value to a democratic society,does not include the pro tection of racist speech∙ The justification for regulating racist speech lies in the impact of racial ly-charged speech,not in the content of the speech itself∙ The regulation of racist speech should take into consideration the criteria of subjective malignancy,necessity and proportionality∙Due to their social status and special role in a democratic society,the media and political figures should bear a more stringent duty of care because of the harm and consequences of their racist remarks,which are far greater than those of other groups∙ During the pandemic,legal regula tion is required regarding remarks of politicians and the media that imply discrimination linked to COVID-19∙

Keywords: freedom of speech ◆ racial discrimination ◆ hate speech ◆ limitation on rights

Since the Covid-19 outbreak,racist and xenophobic incidents have emerged one after another around the world.Leaders and government officials of certain countries have repeatedly made discriminatory remarks linked to the virus in public.Meanwhile,some foreign media,such as TheWall Street Journal,the Danish newspaperJyllands-Posten,and the German weeklyDer Spiegel,have disregarded objective facts and violated the professional ethics of the media to repeatedly publish racist speech.Based on the influence and guidance of public figures and the media,such misleading speech linking the virus to a specific geographical area to isolate and stigmatize specific ethnic groups while leading to the spread of already existing racism and xenophobia,triggering widespread questions and universal condemnation in the international community.Meanwhile,those using such racist speech justify it under freedom of speech.

Freedom of speech and racial equality are not new issues.Based on the practical problems of the diversity of countries and social groups,the academia in the United States and Europe have conducted theoretical research on racial discrimination and hate speech for quite a long time.This research mostly focuses on the empirical study of regulation on racial discrimination in a certain country or region,1. Kenneth Lasson,“Racism in Great Britain: Drawing the Line on Free Speech Racism in Great Britain: Drawing the Line on Free Speech,” 7 Boston College Third World Law Journal Boston College Third World Law Journal 2 (1987);Christine Helen Elers,Pooja Jayan,“‘This is us’: Free Speech Embedded in Whiteness,Racism and Coloniality in Aotearoa,New Zealand,” 54 First Amendment Studies 2 (2020).the debate on the comparison between excessively loose speech environment and serious racial discrimination in the United States,2. The Hon Mr.Justice Nathaniel R.Jones,“Racial Discrimination and Freedom of Expression in the United States,” 19 Commonwealth Law Bulletin 4 (1993);Delgado,“First Amendment Formalism is Giving Way to First Amendment Legal Realism,” in The Price We Pay,L J.Lederer,R.Delgado eds.(New York: HILL &WANG,1994),169-174.the comparative study of regulation on racial discrimination in Europe and the United States,3. Erik Bleich,The Freedom,to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford: Oxford University Press,2011).and so on.In recent years,the identification and regulation of racist speech on the internet has become a much-discussed topic.4. Charlotte Elliott-Harvey,“Freedom of Speech at the Intersection of Racist Speech and online Political Hate Speech,” 36 European Journal of Communication 3 (2021);Jenni Hokka and PewDiePie,“Racism and Youtube’s Neoliberalist Interpretation of Freedom of Speech,” 27 The International Journal of Research into New Media Technologies 1 (2021);Stephanie M.Ortiz,“Racists without racism? From Colour Blind to Entitlement Racism Online,” 44 Ethnic and Racial Studies 14 (2021).In addition,the case law formed and developed by judicial bodies represented by the European Court of Human Rights and the Supreme Court of the United States in the long period of judicial practice also provides an important reference for studying the regulation of racist speech.In contrast,the research on this issue in domestic academia is relatively insufficient.Most of the research on racist speech focus on introductory research of the situation in a certain country or region,5. For example,Tao Ranchun,“A Probe into the Issue of Racial Discrimination in Contemporary Brazil,” Journal of World People Studies 5 (2020);Zhang Xiang,“Selected Cases of German Constitutional Law (2nd series): Freedom of Expression,” (Beijing: Law Press·China,2016),200;Lu Pinghui and Yan Yang,“Britain’s Measures against Racial Discrimination and the Enlightenment,” Journal of the Central University for Nationalities 4 (2018);Bai Gui and Di Jingcun,“An Analysis of the Status Quo,Causes and Problems of EU’S Racial Discrimination or Hate Speech Legislation,” Journalism University 2 (2017);et al.simply mentioning the topic in the study of freedom of expression or online speech,6. For example,He Zhipeng and Jiang Chenxi,“Regulation to Hate Speech on the Internet and Boundary of Free Expression,” Journal of Gansu Political Science and Law Institute 3 (2018);Song Haibin and Zheng Zhize,“An Approach to Legal Regulation on Online Ethnic Hate Speech in The Context of We — media,” Guangxi Ethnic Studies 4 (2018);Dai Yanyan,“The Legal Regulation of Internet Hate Speech,” Journal of Weinan Normal University 7 (2018).or analysis of the status quo and causes of racial discrimination.7. For example,Lin Huaiyi and Zhang Jinjun,“An Analysis of the Current Racial Discrimination in the United States,” Leading Journal of Ideological &Theoretical Education 9 (2015);Wu Yuanqing and Wang Xiaodong.“An Analysis of the Cultural Pattern of Racial Discrimination in the United States,” Dongyue Tribune 7 (2010);Guo Jiulin and Ma Wei,“An analysis of the Root Causes of Racial Discrimination in the United States,” Journal of Dalian Minzu University 2 (2004).After the outbreak of the COVID-19 pandemic,scholars at home and abroad expressed their opposition to the remarks of politicians and the media that imply discrimination linked to COVID-19,yet the results were mostly published in newspapers,online media and other platforms.Although their positions were declared,they failed to study the nature and regulation of racist speech during the pandemic from the legal perspective in a systematic and targeted way.We believe that it is helpful to promote the international community to reach a broad consensus on regulating all forms of contemporary racism through the in-depth analysis of the jurisprudential basis and judging criteria for the regulation of racist speech.Based on the paper intends to summarize the legal grounds and conditions for the regulation of racist speech in the light of the balance between freedom and equality as well as the relevant case law on racist speech in the international community while analyzing the particularity of political figures and the media as speech publishers.

I.The Dilemma: Guaranteeing Freedom of Expression and Regulating Racist Speech

With the strong color of personal liberalism,freedom of speech belongs to the typical “first generation” human rights.For a long time,freedom of speech has been universally recognized and protected by international human rights treaties and legislative practices of various countries for the democratic social values reflected by it.According to article 19 of theUniversal Declaration of Human Rights,everyone has the right to freedom of opinion and expression;this right includes freedom to hold opinions without interference and to seek,receive and impart information and ideas through any media and regardless of frontiers.In addition,it has been confirmed in such international treaties as theInternational Covenant on Civil and Political Rightsand theEuropean Convention on Human Rights.According to the definitions in international human rights treaties,freedom of speech includes internal freedom and external freedom,which covers not only the freedom to advocate or hold certain views and thoughts in one’s heart but also the freedom to spread and express these views and thoughts for the knowledge of others or the public,namely,the “freedom of expression.”

The European Court of Human Rights links freedom of expression to democracy,equality and pluralism.It considers freedom of expression as one of the essential foundations of a democratic society,one of the basic conditions for its progress and for each individual’s self-fulfillment,and a necessary condition for democracy and tolerance,8. Guja v.Moldova,ECHR (Application No.14277/04),Judgment of 12 February 2008,para.69.which provides a glimpse of its importance.However,it should be clarified that whether or not a person holds a claim and what kind of claim he or she holds is a matter of pure thought and conscience that does not fall within the scope of regulation and adjustment by law.The freedom to express a certain claim is not an absolute right because it affects the rights of others by virtue of the manner in which it is conducted and the means by which it is disseminated.Inappropriate expressions of speech on issues like religion,gender,race,homosexuality,and so on,which are of high public concern and involve the reputation of a group,often discriminate against a group and have an impact on the equality and non-discrimination rights of others.Accordingly,restrictions on freedom of expression have been included in the legislation of international human rights treaties to protect such important values as national security.For example,it is stipulated in paragraph 2,article 10 of theEuropean Convention on Human Rightsthat the exercise of these freedoms,since it carries with it duties and responsibilities,may be subject to such formalities,conditions,restrictions or penalties prescribed by law are necessary for a democratic society.It is also clarified in paragraph 3,article 19 of theInternational Covenant on Civil and Political Rightsthat the exercise of rights carries with it special duties and responsibilities.It may therefore be subject to certain restrictions.

On the one hand,the prohibition of racial discrimination and hate speech9. Racial hate speech is a general concept in the academia when referring to regulated speech in general terms,yet there is no unified understanding of the clear meaning of the concept.Some scholars believe that “hate speech” is less a term of fact than a term of convenience,because it has not (yet) been defined in a watertight or authoritative way,either in international human rights law or in relevant scholarship.Tarlach McGonagle,“The Troubled Relationship Between Free Speech and Racist Hate Speech: the Ambiguous Roles of the Media and Internet,” UN Committee on the Elimination of Racial Discrimination 81st Session,28 August 2012.Some scholars use hate speech and discriminatory speech interchangeably in their articles without making a distinction;some scholars consider hate speech as a generic term for different kinds of discriminatory speech and racist speech is included in hate speech.See Gong Yan,“Research on the Legal Regulation of Hate Speech,”(Ph.D.dissertation,Shandong University School of Law,2011).Some scholars make a degree distinction between racist speech and racial hate speech,arguing that hate is a much greater and more harmful form of discrimination.Nazila Ghanea,for example,notes that the criteria for defining racial discrimination are different from those defining racial hatred.See Committee on Elimination of Racial Discrimination Discuses Racist Hate Speech,Targeted News Service,Washington,D.C.,28 August 2012.The European Court of Human Rights prefers a case-by-case approach to hate speech and an autonomous definition to avoid limitations on its power to act in subsequent cases.See Mario Oetheimer,“Protecting Freedom of Expression: the Challenge of Rate Speech in the European Court of Human Rights Case Law”,17 Cardozo Journal of International and Comparative Law (2009).No precise distinction is made between racial hate speech and racist speech in this paper.and the achievement of equality for all human beings are important values to be considered in limiting freedom of expression.Legislation in many countries or regions takes a positive stance when it comes to limiting freedom of expression,particularly in regulating racist speech.For example,thePublic Order Act1986 of the United Kingdom provides that a person commits a crime if he incites racial hatred or causes the consequences of racial hatred by using threatening,abusive and degrading language or conduct.10. Gudmundur Alfredsson and Asborn Eide,Universal Declaration of Human Rights: A Common Standard of Achievement,translated by the China Society for Human Rights Studies (Chengdu: Sichuan People’s Publishing House,1999),407.The crime of non-public incitement to racial discrimination,hatred or violence is also specifically regulated in Section 3 Chapter 5 of theFrench Penal Code.11. The New French Penal Code,trans.Luo Jiezhen (Beijing: China Legal Publishing House,2003),225.Similarly,most states in the United States have various anti-hate and anti-discrimination statutes that include,among other things,prohibitions on racist speech or expression of racist content.12. The Hon Mr.Justice Nathaniel R Jones,“Racial Discrimination and Freedom of Expression in the United States”,19 Commonwealth Law Bulletin 4 (1993).Some scholars believe that the due restriction of hate speech is a reasonable protection of human rights and the rule of law,and is of great significance to the stability of the country and society.13. He Zhipeng and Jiang Chenxi,“Regulation to Hate Speech on the Internet and Boundary of Free Expression”.This has led to debates around freedom of expression and racial equality.Groups pursuing racial equality support the introduction of relevant anti-racial discrimination laws by the state.“While we believe that the right to freedom of speech is a valuable one that underpins our democracy,the government’s role must also be about upholding the rights of all groups in our society to be free from racial vilification.On this important issue,the legislative balance must be tilted in favor of the most vulnerable so as to,in turn,preserve mutual respect among all who enjoy the rights and privileges of our diverse society.”14. Brotherhood of St Laurence,“Submission to the Inquiry on Freedom of Speech in Australia and the Racial Discrimination Act 1975 to Parliamentary Joint Committee on Human Rights,” 8 December,2016.

On the other hand,freedom of speech under the guidance of liberalism is also regarded by quite a few groups as the primary guarantee for participating in a democratic society.Some scholars have pointed out that suppressing hate speech,especially according to the “one-way” suggestions of some civil rights theorists,risks censorship or accusations of reverse discrimination,which will also cause hostilities and potential sabotage between groups.15. The Hon Mr.Justice Nathaniel R Jones,“Racial Discrimination and Freedom of Expression in the United States”.Such groups highly emphasize the importance of freedom of expression and consider restrictions on racist speech to be undemocratic.“Government restrictions on hate speech are unnecessary...the community itself will naturally marginalize people who are excessively rude or bigoted.”16. Robin Edger,“Are Hate Speech Provisions Anti Democratic? An International Perspective,” 26 American University International Law Review 1 (2010).It is most typical in the United States where liberalism is paramount.The First Amendment of the US Constitution makes it clear that Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof,or abridging the freedom of speech,or of the press,or the right of the people peaceably to assemble,and to petition the Government for a redress of grievances.Under the guidance of the constitutional philosophy,when signing and ratifying relevant international conventions,the United States made reservations to the provisions of the conventions that require States parties to regulate racial discrimination and hate speech according to law.Upon ratifying theInternational Covenant on Civil and Political Rights,the United States made its first reservation in respect of Article 20,17. According to Paragraph 2 Article 20 of the International Covenant on Civil and Political Rights,any advocacy of national,racial or religious hatred that constitutes incitement to discrimination,hostility or violence shall be prohibited by law.stating that Article 20 does not authorize or require the United States to take legislative or other action to restrict the rights to freedom of expression and association protected by the Constitution and laws of the United States.Similarly,when the United States signed theInternational Convention on the Elimination of All Forms of Racial Discrimination,it reserved that the freedom of speech,expression and association of individuals are widely protected by the Constitution and laws of the United States.Therefore,the United States does not accept the obligation to require States Parties to adopt legislation or any measures to limit these rights.Freedom of expression has been given a very high priority,as confirmed and promoted by both the US Constitution and the Supreme Court of the United States.The premise behind free speech and the First Amendment is to protect the ability of people to determine their own destinies as a collective and allow for genuine self-determination.18. Delgado,“First Amendment Formalism is Giving Way to First Amendment Legal Realism,” in The Price We Pay,L.J.Lederer,R.Delgado eds.,(New York: Hill &Wang,1994),173.According to the argument,restrictions on free speech would contradict citizen self-determination and instead become a shackle to achieving racial equality.It is through the exercise of freedom of speech,assembly and petition that black people in the United States can constantly challenge the apartheid and inequality system in the early days of the country.19. The Hon Mr.Justice Nathaniel R Jones,“Racial Discrimination and Freedom of Expression in the United States”.If speech is restricted,it would silence those who might benefit primarily from its expression.20. Daniel M.Downs and Gloria Cowan,“Predicting the Importance of Freedom of Speech and the Perceived Harm of Hate Speech,” 42 Journal of Applied Social Psychology 6 (2012).

The law protects both individual rights and collective goals including the right to equality.The core dilemma in the debate is that the international community attempts to reconcile the two seemingly contradictory values of individuality and collectivity through rules,so as to realize the due role of speech in the pluralistic society where both goals are required at present,but the definition of the connotation and extension of rights related to freedom and equality,the contradiction between the common pursuit of rights enjoyment by majority groups and minority groups and the difference of group discourse power,and the attitude and strength of governments in guiding and spreading their own “constitutionality” values undoubtedly put such reconciliation in an awkward situation.To be specific,it seems that both the protection and the regulation of racist speech would encounter opposition and question by the holders of dissent.

II.Jurisprudence Inquiry: The Legitimate Basis of Legal Regulation of Racist Speech

A.Freedom of expression does not include the freedom to make racist speech

“The plain fact is that not all free speech is good speech.Which means that freedom of speech is not always a sound or just public policy.”21. Toni M.Massaro,“Equality and Freedom of Expression: The Hate Speech Dilemma,” 32 William &Mary Law Review 3 (1991).If protecting the right to freedom of speech is critical because of its great power to promote democracy,expose abuse,and advance politics,the arts,science,and business,it is also important to recognize that freedom of speech can also be used to incite violence,spread hate,and undermine personal privacy and security.22. Clare Ovey and Robin White,The European Convention on Human Rights,He Zhipeng and Sun Lu trans.(Beijing: Peking University Press,2006),380.

International institutions have already confirmed in the long-term trial of racist speech complaints that freedom of speech is not an absolute right and the exercise of civil rights is restricted by legal justification.As early as 1984,the United Nations Human Rights Committee noted when dealing with individual communications that the opinion “god made different races to live apart...means that there can be no mixing”which the applicant seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20 (2) of theInternational Covenant on Civil and Political Rightsto prohibit.23. J.R.T.and the W.G.Party v.Canada,U.N.Human Rights Committee (Communication No.104/1981),U.N.Doc.CCPR/C/OP/2 at 25 (1984),para.8.On the grounds of adjudication,the European Court of Human Rights made further development.Apart from the requirement of exercising freedom of expression in Article 10 (2) of theEuropean Convention on Human Rights,Article 17 of theEuropean Convention on Human Rightsis also used as the grounds for a trial.According to Article 17 oftheEuropean Convention on Human Rights,nothing in the Convention may be interpreted as implying that any State,group or person has any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.In this regard,the European Court of Human Rights has explained in detail in its case law.In the 2004 case of Norwood v.the United Kingdom,24. Norwood v.United Kingdom,ECHR (Application No.23131/03),Second section decision as to the admissibility.the applicant displayed on the first floor of his apartment a giant poster representing the Twin Towers in flame that was accompanied by the words “Islam out of Britain —Protect the British People” and a symbol of a crescent and star in a prohibition sign.The poster was removed by the police following a complaint from a member of the public.According to the UK court,the applicant displayed,with hostility toward a racial or religious group,writings and signs which are threatening,abusive or insulting,within the sight of a person likely to caused harassment,alarm or distress by it.The European Court of Human Rights agreed,holding that the poster was a public expression of attack on all Muslims in the United Kingdom.Such a general,vehement attack against a religious group,linking the group as a whole with a grave act of terrorism,is incompatible with the values proclaimed and guaranteed by theEuropean Convention on Human Rights,notably tolerance,social peace and non-discrimination.Therefore,the European Court of Human Rights ruled that the applicant’s display of the poster in his window constituted an act within the meaning of Article 17 of theEuropean Convention on Human Rights,which did not,therefore,enjoy the protection of Articles 10 on freedom of speech and expression.25. Ibid.

In addition to racial discourse in a general sense through speech,painting,and display in a positive manner,the negative act of denying history has also been included in the regulation of discriminatory speech in many Western countries.More than a dozen European countries have made it a crime to deny the Holocaust or claim that Germany did not kill Jews during Nazi rule.26. Anthony Lewis,Freedom of Speech and Boundaries: A Brief History of the First Amendment to the US Constitution,Xu Shuang trans.(Beijing: Law Press·China,2009),149.In the case of Garaudy v.France,the applicant published a book whose content was considered to deny the Holocaust and with racist speech to incite hate.The European Court of Human Rights,after hearing the case,noted that the book was not the result of historical research,but rather a work in which the applicant himself falsified history and denied the facts of the genocide.The Court found that the depiction or rewriting of such historical facts undermined the values underlying the struggle against racism and anti-Semitism and posed a serious threat to public order.Therefore,the Court noted that the applicant had used his freedom of expression for purposes contrary to the text and spirit of theEuropean Convention on Human Rights.Accordingly,the Court rejected the applicant’s claim under Article 17 of the Convention.27. Garaudy v.France,ECHR (Application No.65831/01),translation-extract,2003.

B.The justification for regulating racist speech lies in its negative impact rather than in its content

Some civil rights theorists view racist speech as “low value” expression,28. Toni M.Massaro,“Equality and Freedom of Expression: The Hate Speech Dilemma”.arguing that the low value of the content is the reason for the regulation.In fact,the reason for the international community to support restrictions on racist speech is not based on the content of the speech itself.“Governments should not distinguish among ideas and privilege some viewpoints over others.”29. Ibid.In this regard,it is stipulated intheBasic Law of the Federal Republic of Germanythat every person shall have the right freely to express and disseminate his opinions in speech,writing and pictures and to inform himself without hindrance from generally accessible sources.Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed.There shall be no censorship.The Supreme Court of the United States well-reasoned in the 1991 case R.A.V.v.City of St.Paul30. R.A.V.v.St Paul,505 U.S.377 (1992).to clarify the principle that speech cannot be selectively restricted based on the contents,making the case highly representative in the judicial practice of the United States.The City of St.Paul,Minnesota enacted an anti-harassment ordinance that makes it a misdemeanor to place a burning cross or other signs that cause anger,alarm,or resentment in another person based on race,color,creed,religion,or sex on private property.In the case,a 17-year-old white youth was charged with violating the ordinance after burning a cross in the yard of a black family.The white youth thought the ordinance violated the First Amendment to the United States Constitution by limiting his freedom of speech.After hearing the case,the Supreme Court of the United States held that the scope of the ordinance is too broad and that such restrictions on rights based on the content of speech are impermissible,and thus ruled in favor of the white youth’s claim.Specifically,based on the content of the speech,the ordinance selectively bans expressions containing biased ideas based on race,color,creed,religion,etc.,while not restricting biased discriminatory expressions related to homosexuality,political affiliation,and similar — “as if one is not an equal member of society.”31. Robin Edger,“Are Hate Speech Provisions Anti Democratic? An International Perspective”,26 American University International Law Review 1 (2010).Justice Scalia gave an example of the irrationality of limiting expression based on content: one could hold up a sign saying,for example,that all “anti-Catholic bigots” are misbegotten;but not that all “papists” are,for that would insult and provoke violence “on the basis of religion.” “The ordinance goes even beyond mere content discrimination,to actual viewpoint discrimination.”32. R.A.V.v.St Paul,505 U.S.377 (1992),391-392.

The next day, beside the road, the red flowers were brighter than the day before. The natural beauty made me gasp4. It gave me an understanding of the energy of growing and youth and convinced me it couldn t be destroyed with a heartless stick. I wanted to be like the soul of a flower.

Article 4 of theInternational Convention on the Elimination of All Forms of Racial Discriminationrequires States parties to condemn all attempts to justify or promote racial hatred and discrimination in any form.33. According to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination,States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin,or which attempt to justify or promote racial hatred and discrimination in any form...On this basis,it listed provisions on such measures as “declaring an offense punishable by law,” “declaring illegal and prohibit organizations,” and so on,by State Parties to some acts of racial hatred and discrimination.In fact,the legal regulation of some racist speech to a greater extent than “condemnation” is based on the negative impact of such speech.According to Section 319 of theCanadian Penal Code,it is prohibited to willfully promote hatred against any identifiable group by communicating statements other than in private conversation.34. See Canadian Criminal Code,Bian Jianlin et al.trans.(Beijing: China University of Political Science and Law Press,1999),203.The exclusion of “private conversation” from the scope of regulation is actually based on the fact that this kind of speech expression has little impact and does not need to be regulated by law.In real life,it is inevitable that the public will comment on the different characteristics and performances of different groups,and private conversations may also contain discriminatory statements or comments.For example,a family makes discriminatory or offensive remarks at the dinner table that “black athletes do better than other races in sprint events...” On the surface,such speech contains racial differences or even discrimination in content that could be offensive to specific groups,yet the speech is obviously not the target of legal regulation.“This sort of speech fosters a climate of intolerance and inequality.While such speech is certainly offensive,it is not the offensiveness that justifies its regulation.Instead,it is the speech’s detrimental effect upon equality that supports such regulation.”35. Robin Edger,“Are Hate Speech Provisions Anti Democratic? An International Perspective”.“Such aspersions are only actionable if a reasonable person could regard them as reflecting upon the reputations of each member of the group or upon the reputation of the particular plaintiff who brings the proceedings.”36. David Rolph,“Racial Discrimination Laws as a Means of Protecting Collective Reputation and Identity,”Sydney Law School Legal Studies Research Paper 14/23,March 2014.

Specifically,the adverse effects of racial discrimination mainly include two aspects.One is the personal influence suffered by the discriminated target groups,including psychological harm.A person’s personal dignity and sense of belonging to the community are closely related to the concern and respect of the group to which he belongs.37. Stefan Sottiaux,“‘Bad Tendencies’ in the ECtHR’s ‘Hate Speech’ Jurisprudence,” 7 European Constitutional Law Review 1 (2011).Such attacks and harms seriously violate the personal safety and human dignity of the discriminated person.An empirical study recorded in detail that users who were active in hate speech and inciting violence on the Stormfront website from 2009 to 2014 are indirectly responsible for hundreds of deaths.38. Raphael Gohen-Almagor,“Taking North American white supremacist groups seriously: The Scope and Challenge of Hate Speech on the Internet,” 7 International Journal for Crime,Justice and Social Democracy 2(2018).The other refers to the adverse impact on the democratic society.Historically,racism used to be a tool of exploitation,but now it has become a tool of exclusion.39. A.Sivanandan,Freedom of Speech is not an Absolute,48 Race &Class 1 (2006).It is easy for the continuous spread and penetration of discriminatory speech in a democratic society to cause hostility and exclusion among the public.The lack of sense of belonging and unfriendly social atmosphere make the discriminated groups unable and unwilling to participate in political life.All these are contrary to the pluralism and tolerance required by a democratic society.

The Supreme Court of Canada held that it is reasonable to criminalize the publication of hate speech in a free and democratic society,given that harmful speech could lead to harmful behavior.40. Gudmundur Alfredsson and Asborn Eide,Universal Declaration of Human Rights: A Common Standard of Achievement,407.The jurisprudence of judging whether it should be regulated based on the negative impact of racist speech is also reflected in the judgment of the European Court of Human Rights: Freedom of speech is one of the foundations of a democratic society and one of the basic conditions for the progress of the democratic society and the self-realization of every individual.Subject to Article 10 (2) of theCovenant,it also applies to messages or opinions that are offensive,shocking or disturbing,that is,the requirement of pluralism and tolerance,without which there can be no democratic society.41. Dicle v.Turkey (No.2),ECHR (Application No.46733/99),Judgment of 11 April,2006,para.33.The Court further emphasized through example that even though certain paragraphs of the article,especially those with sharp words and portray a negative picture of the state in content,give the speech a hostile connotation if these paragraphs do not actually encourage violence,armed forces or rebellion,that is,the speech itself does not cause corresponding adverse effects,such speech should not be regulated.42. Ibid.

III.Practice Summary: The Applicable Standards of Legal Regulation of Racist Speech

According to the current international human rights conventions and the universal judicial practice of various countries,the view that racist speech is not protected by freedom of speech has become the consensus of the international community.However,it is difficult for judicial institutions to directly apply the legal principles of“anti-racist speech” and “negative impact,” which lack specific judgment standards,to the trial of specific cases in judicial practice.As a result,the following questions arise: Should all speech containing racial issues be regulated? To what extent is racist speech prohibited by law? It should be clarified that racist speech should be regulated for its adverse effects on specific groups and society,which is only the legitimate basis of legal regulation but not the necessary and sufficient conditions of legal regulation.In other words,not all offensive and harmful speech should be regulated.If the law restricts freedom of speech too severely and regulates all expressions at every turn,it would inevitably imprison the expression of normal thoughts of the public,which is not conducive to the progress of a democratic society.

Due to the differences in historical background,cultural tradition,social interests and judicial practice,the legal restrictions on racial discrimination or hate speech vary from country to country.Some scholars have pointed out that if the attitudes of different countries toward the legal regulation of hate speech are regarded as a line segment,tolerance and even absolute protection,restriction and even absolute prohibition are the two endpoints of the line segment.The United States is close to the end of absolute tolerance,Germany is close to the end of absolute prohibition,and other countries are distributed on the line segment between the two endpoints.43. Gong Yan,“Research on the Legal Regulation of Hate Speech,” (Ph.D.dissertation,Shandong University,2011),38.Western countries have roughly two traditions for freedom of speech: Compared with the American tradition,the European tradition emphasizes more on protecting the rights of others and enjoying the responsibility of freedom of speech.The distinction between European and American traditions is more prominent in cases involving speech inciting hate and racial discrimination.44. Gudmundur Alfredsson and Asborn Eide,Universal Declaration of Human Rights: A Common Standard of Achievement,406.

In US legal culture,“freedom,” as the core value,is the core discourse that keeps pace with “right.”45. Gao Hongjun,“The Freedom in American Legal Culture and its Limitations,” Tsinghua Law Review 1 (2009).The United States refuses to criminalize speech,expression or publication that others consider extremely offensive or harmful.46. A/HRC/WG.6/36/USA/l,National Report Submitted in accordance with Paragraph 5 of the Annex to Human Rights Council resolution 16/21.This overly permissive legislative tendency has prompted scholarly questions: The First Amendment to the Constitution,in providing for freedom of speech,does not take into account the responsibilities that come with the enjoyment of that right.In other words,the regulations of the United States on free speech are more or less absolute.47. Gudmundur Alfredsson and Asborn Eide,Universal Declaration of Human Rights: A Common Standard of Achievement,406.French Judge Roger Errera once said that Europeans can never accept the tolerant attitude of Americans toward hate speech and that the American concept is based on irredeemable social and historical optimism.48. Anthony Lewis,Freedom of Speech and Boundaries: A Brief History of the First Amendment to the US Constitution,Xu Shuang trans.(Beijing: Law Press·China,2009),151.On the contrary,because of the historical lesson that the Nazis were able to rule autocratically with the help of the Weimar Constitution,which guaranteed freedom,Germany opted for a combat democracy in which “those who deny freedom and democracy cannot enjoy freedom and democracy.” “Speech aimed at attacking the fundamental order of liberal democracy is seen as the abuse of fundamental rights and political parties that are intent on undermining that order are considered unconstitutional.”49. Zhang Xiang,“The Maintenance of Core Value by the German Constitution,” Shandong Social Science 2(2013).In this regard,some scholars pointed out that the democratic theory adopted by Germany “is based on the special historical lessons of Nazi coming to power through democracy.As a result,although it can be understood,it cannot be used for reference or transplanted by other countries.”50. Ibid.

It seems difficult to apply either the overly permissive or overly restrictive standards of regulation of racist speech in the United States and Germany respectively as a universal norm.“Countries other than the United States and Germany are mainly distributed on the line between the two endpoints of tolerance and restriction,either close to the United States or close to Germany,yet in general showing a tendency to move closer to Germany while keeping some distance from it.”51. He Zhipeng and Jiang Chenxi,“Regulation to Hate Speech on the Internet and Boundary of Free Expression”,159.Of course,the tensions and pressures that each country can afford to enjoy fundamental freedoms in different contexts are certainly important circumstances that should be taken into account,so it would be futile and impractical to propose a one-size-fits-all path to the regulation of discriminatory speech.Combined with the “controversial points” that have attracted much attention in the judicial practice of the United States and Germany for the location at the endpoints,the paper only explores and summarizes the regulatory standards for universal reference by referring to the regulatory paths of discriminatory speech in other countries and international judicial institutions.

A.The subjective malignancy of the speech publisher should be judged

The subjective malignancy of the speech publisher is an important prerequisite for the regulation of racist speech.Generally speaking,subjective malignancy is a term of criminal law that is important for determining the nature of crime and sentencing.Scholars of Criminal law have pointed out: subjective malignancy refers to the extent of ethical and legal condemnation of the psychological state or criminal intent of the offender at the time of the crime.52. Ma Rongchun,“On the Definition of Personal Dangerousness and Its Relationship with Subjctive Evil Character and Social Harmfulness,” Journal of South China Normal University 5 (2010).Although the “regulation” discussed in the paper is not limited to the scope of criminal law,the subjective psychological state and criminal intent of the offender expressed by the term can be used for reference.For racist speech,if the purpose and motive of the publisher of the speech are not condemnable,it should not be regulated.In Jersild v.Denmark,the European Court of Human Rights noted that “an important factor in the Court’s evaluation will be whether the item in question,when considered as a whole,appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.”53. Jersild v.Denmark,ECHR (Application NO.15890/89),Judgment of 23 September 1994,para,31.The court held after the trial,the purpose of the TV program is only to “analyze,expose and explain” the current situation.Therefore,the claim of the applicant was supported.

B.The necessity of regulation should be considered in a comprehensive way

The consideration of necessity is an important issue for judges to judge whether racist speech should be regulated.Similar to the standard of “whether it is necessary for a democratic society” for the European Court of Human Rights to deal with cases,the factors that need to be considered include not only such subjective factors as occupation,background and social impact from the perspective of speech publishers but also such objective standards as national security and territorial integrity,public morality,public interests and the legal rights of others from the perspective of the legitimacy of the limitation on rights.In judging the necessity of the regulation on racist speech,the European Court of Human Rights pointed out that “which by definition is addressed to a very small audience,a fact which limited their potential impact on‘national security’,‘public order’ and ‘territorial integrity’ to a substantial degree.”56. Karatas v.Turkey,ECHR (Application No.23168/94),Judgment of 8 July 1999,para.52.If the speech in question does not use any media,as the message read at the memorial ceremony,the impact will be limited.57. Ibid.,para.50.

Regulating speech does not require the judge to list each factor for separate judgment,all possible factors related to racist speech should be considered in a comprehensive way.Therefore,in cases with similar backgrounds,the discretion results of the necessity of speech regulation would vary greatly for different individual factors.In the case of Jersild v.Denmark58. Jersild v.Denmark,ECHR (Application NO.15890/89),Judgment of 23 September 1994.heard by the European Court of Human Rights,the applicant,Jersild,a journalist interviewed three racist youths on his program and was found to have aided and abetted the dissemination of racist speech for the reason that he did not stop and give positive guidance and comments when his interviewees were making racist remarks.During the trial of the case,in view of the particularity of the profession (industry),the court pointed out that “not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.Were it otherwise,the press would be unable to play its vital role of ‘public watchdog’”59. Ibid.,para.31.and “the punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to the discussion of matters of public interest.”60. Ibid.,para.35.In addition,the court made a comprehensive assessment of the preparation,content,background and purpose of the program61. Ibid.,para.31.and finally found that the reasons of Denmark were not sufficient to establish convincingly that the interference on the applicant was “necessary in a democratic society.”62. Ibid,para.37.A few years later,the case of Surek v.Turke63. Surek v.Turkey,ECHR (Application No.26682/95),Judgment of 8 July 1999.also involved the news media industry,but the verdict was the opposite.A newspaper was punished for publishing readers’ letters about the Kurdish conflict.The European Court of Human Rights concluded after the trial that although the newspaper sponsor did not accept the views contained in the letters,he did provide the authors of the letters with an outlet for incitement to violence and hatred.The court noted that journalists have special responsibilities and duties in situations of political conflict and tension because they can become a tool for spreading hate speech and violence.64. Ibid.,para.59.Therefore,in view of the tense security situation in southeastern Turkey,the Court found that the government’s restrictive measures did not violate Article 10 of theEuropean Convention on Human Rights.

C.The regulatory means and purposes should be proportional to each other

On the basis of confirming that it is necessary to regulate speech,a judge needs to evaluate whether the regulatory means adopted are in proportion to the goal pursued.Proportionality,also known as the principle of balance,requires that the means of public power behavior should be commensurate with the public interests it promotes.It is stipulated in the 1953Federal Administrative Executive Lawthat coercive means should be proportional to the purpose pursued by them.Coercive measures should harm the interests of relevant parties and the public as little as possible.65. Quoted from Liu Quan,“Reconstruction on the Principles of Legitimate Purpose and Proportionality,” China Legal Science 4 (2014).In the relevant judgment,the European Court of Human Rights pointed out that,“every‘formality’ ‘condition’ ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”66. Handyside v.United Kingdom,ECHR (Application No.5493/72),Judgment of 7 December 1976,para.49.In the case of Incal v.Turkey,according to the facts of the case,the European Court of Human Rights determined that the applicant applied for permission from the government before distributing the leaflets,it is a preventive measure for the government to convict and punish the applicant after considering the leaflets express separatism.Because the case is different from other cases that have caused adverse consequences,proportional regulation measures should be adopted for such preventive cases.67. Incal v.Turkey,ECHR (41/1997/825/1031),Judgment of 9 June 1998,para.54-57.

It should be clarified that legal regulation includes not only conviction and sentencing but also all restrictive measures covering administration and civil affairs.As far as theInternational Convention on the Elimination of All Forms of Racial Discriminationis concerned,States parties can use various means including declaring crimes,declaring illegality,prohibiting,dissuading and condemning according to the influence and consequences of speech.The Special Rapporteur on freedom of opinion and expression,Frank La Rue,also put forward a series of non-legal measures to deal with the expression of hatred and intolerance,involving education and awareness raising,counter-speech and social dialogue,data collection and research,media and ethics.68. Sun Shiyan,“International Legal Regulation of Hate Speech — Focused on Article 20 (2) of the International Covenant on Civil and Political Rights,” Hebei Law Science Journal 3 (2022).It is pointed out in the General Recommendation No.35 of the Committee on the Elimination of Racial Discrimination (CERD) that: “As a minimum requirement,and without prejudice to further measures,comprehensive legislation against racial discrimination,including civil,administrative law and criminal law,is indispensable to combating racist hate speech effectively.”69. GERD/C/GC/35,para.9.“The dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings,particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.Nevertheless,it remains open to the competent State authorities to adopt,in their capacity as guarantors of public order,measures,even of a criminal-law nature,intended to react appropriately and without excess to such remarks.”70. Incal v.Turkey,ECHR (41/1997/825/1031),Judgment of 9 June 1998,para.54.

IV.Special Treatment: Regulation of Racist Speech by Media and Political Figures

As the information transmitter of mass groups,the media has always been considered to occupy a prominent position in a country ruled by law.“The press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders.In particular,it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion;it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.”71. Castells v.Spain,ECHR (Application No.11798/85),Judgment of 24 April 1992,para.43.Similarly,the public debate of politicians is also regarded by Western countries as an important means for the development of a democratic society.Freedom of speech is a key aspect of democratic commitment because it not only allows the best policy to be chosen from various alternatives but also helps to ensure the freedom to participate in the political process.72. Stefan Sottiaux,“‘Bad Tendencies’ in the ECtHR’s ‘Hate Speech’ Jurisprudence”.Therefore,for freedom of expression,the media and political figures are different from the general subjects because of their special roles in a democratic society.Such difference should be considered in the discussion of the regulation of racial discrimination.

A.Loose stance of judicial institutions on the freedom of speech of the media and political figures

Generally speaking,judges tend to keep a loose position to protect the democracy of social public life in cases involving the freedom of speech of the media and political figures.Intervention,as an exception to the rule,must be interpreted narrowly in cases of doubt.73. Manfred Nowak,CCPR Commentary: U∙N∙ Covenant on Civil and Political Rights,Sun Shiyan and Bi Xiaoqing trans.,(Shanghai: SDX Joint Publishing Company,2008),480.The consistent position of the European Court of Human Rights is that “it should not be envisaged unless there are particularly strong reasons for doing so.”74. Jersild v.Denmark,ECHR (Application NO.15890/89),Judgment of 23 September 1994,para.35.In the case of The Sunday Times v.United Kingdom,the European Court of Human Rights pointed out that the freedom of speech of the media in the case should not be restricted,because it can stimulate democratic debate on matters of public interest and plays a vital role in forming public opinion;in addition,the public also has the right to receive information and ideas.75. The Sunday Times v.United Kingdom,ECHR (Application No.6538/74),Judgment of 26 April 1979,para.43.In a case concerning freedom of expression involving political figures,the European Court of Human Rights pointed out,“the promotion of free political debate is a very important feature of a democratic society.It attaches the highest importance to freedom of expression in the context of political debate and considers that very strong reasons are required to justify restrictions on political speech.Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned.”76. Affaire Sanchez v.France,ECHR (Application NO.45581/15),Judgment of 2 September 2021,para.84.Meanwhile,the Court stressed that while precious to all,freedom of expression is particularly important for political parties and their active members.They represent their electorate,draw attention to their preoccupations and defend their interests.Accordingly,interferences with the freedom of expression of a politician call for the closest scrutiny on the Court’s part.77. Incal v.Turkey,ECHR (41/1997/825/1031),Judgment of 9 June 1998,para.46.

B.More prudent obligations of the media and political figures to racial discrimination

It is precisely because of the different social statuses and roles of the media and political figures in a democratic society that the harm and consequences would far exceed those of other groups once they make racial discrimination and racist speech.This wide audience and strong influence also determine that they should bear more prudent obligations for racist speech.The European Court of Human Rights attaches particular importance to the medium used and the context in which the offending remarks were disseminated,and therefore to their potential impact on public order and social cohesion.78. Affaire Sanchez v.France,ECHR (Application NO.45581/15),Judgment of 2 Sept 2021,para.86.It was once pointed out in the judgment that the potential influence of the media should be considered because radio and television have a more immediate and powerful effect than printed words.79. Clare Ovey and Robin White,The European Convention on Human Rights,384.The speech could influence the whole public opinion while the voices of marginalized groups undoubtedly have little influence.80. Katharine Gelber,“Freedom of Speech and Racial Vilification in Australia: ‘The Bolt case’ in Public Discourse,” 48 Australian Journal of Political Science 4 (2013).It is noteworthy that the speech with harmful consequences we are talking about includes not only discriminatory speech of an extreme nature that incite hatred but also selective,one-sided and inaccurate reports by some media that appear to be neutral and moderate which should be given more attention.Bias and stereotypes in the mainstream media often have a broader and perhaps even more harmful impact because these views and representations are “normalized” and can easily reshape the perceptions and knowledge of the public of race in a subtle way.81. Maleiha Malik,“Religious Freedom,Free Speech and Equality: Conflict or Cohesion?” 17 Res Publica 1(2011).

The European Commission against Racism and Intolerance (ECRI) noted that political leaders play a key role in combating crimes related to racism and hate.82. See https://www.coe.int/en/web/european-commission-against-racism-and-intolerance/statements,accessed October 17,2021,.“Public figures have already received sufficient rewards from their roles,including general respect from society,the realization of ambitions,fulfillment and material treatment.”83. Zhang Xinbao,The Legal Protection of the Right of Reputation (Beijing: China University of Political Science and Law Press,1997),106.As a result,when they face a conflict of interest protection on both sides of the private subject,the law often tends to prefer the rights of the general group in an appropriate way to achieve substantial equality of rights.Whether in public speeches or political debates,political figures in the performance of public duties are,to some extent,the bearers of governmental opinions and views.At this point,the apparent conflict between the rights of private subjects of political figures and ordinary citizens has essentially transformed into a confrontation between the public power of the government and its officials and the rights of private subjects.When the demand for the rights of private subjects is generalized,the needs of individual interests are externalized into public interests.Once political figures act against the requirements of democratic social values,they pose a threat to public interests.On the issue of racist speech,the public discriminatory speech of political figures not only violates the rights of specific groups but also affects the interests of citizens participating in national politics and social public life,and thus damages the values of an equal and pluralistic democratic society.The European Court of Human Rights has repeatedly stressed that it is crucial for politicians,when expressing themselves in public,to avoid comments that might foster intolerance.84. Affaire Sanchez v.France,ECHR (Application NO.45581/15),Judgment of 2 September 2021,para.89.It is pointed out when referring to racist speech in the United States in the United Nations Special Rapporteur on contemporary forms of racism,racial discrimination,xenophobia and related intolerance that “the increasing use of divisive language and attempts to marginalize racial,ethnic and religious minorities in political speech has functioned as a call to action,facilitating violence,intolerance and bigotry.The connections between mass shootings and white extremist ideology are well-established.”85. See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24875,accessed 23 August,2021.For this reason,the media and political figures should be more prudent in exercising their right to freedom of speech and countries can also make it subject to certain “restrictions” or “penalties.”86. Affaire Sanchez v.France,ECHR (Application NO.45581/15),Judgment of 2 September 2021,para.84.

C.Value evaluation of human rights institutions

In fact,human rights institutions have long been aware of the contradiction between the indispensability of the media and political figures in a democratic society and the pernicious effects of such groups when they make inappropriate statements and have tried to reconcile it through jurisprudence,general recommendations,and so on.In a case related to the freedom of speech of the media and political figures,the European Court of Human Rights,while ensuring a stricter standard of scrutiny when considering whether the restriction measures of the State Party are “necessary in a democratic society,” has also made clear that while the press has a duty to impart information and ideas on political issues,it must not overstep the bounds set,inter alia,for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime.87. Surek v.Turkey,ECHR (Application No.26682/95),Judgment of 8 July 1999,para.59.Likewise,“the press must not overstep certain bounds,particularly as regards the reputation and rights of others.”88. Delfi As v.Estonia,ECHR (Application No.64569/09),Judgment of 16 June 2015,para.132.In response to the most controversial issue of political debate,the European Court of Human Rights clarified in its latest jurisprudence,“in an electoral context,while political parties should enjoy broad freedom of expression in order to try to convince their electorate,in the case of racist or xenophobic discourse such a context may contribute to stirring up hatred and intolerance,as the positions of election candidates tend to become more rigid and slogans or stereotyped formulae are given more prominence than reasonable arguments.The impact of racist and xenophobic discourse is then likely to become greater and more harmful.”89. Affaire Sanchez v.France,ECHR (Application NO.45581/15),Judgment of 2 September 2021,para.87.

The Committee on the Elimination of Racial Discrimination of the United Nations holds a similar position on racist speech of the media and political figures.It is required in CERD General Recommendation 30 that States Parties should “take resolute action to counter any tendency to target,stigmatize,stereotype or profile,on the basis of race,color,descent,and national or ethnic origin,members of ‘non-citizen’population groups,especially by politicians,officials,educators and the media,on the Internet and other electronic communications networks and in society at large.”90. UN Treaty Body Database,accessed 22,August,2021,https://tbintemet.ohchr.org/_layouts/15/treatybodyexternal/TBSearchaspx?Lang=zh&TreatylD=6&DocTypelD=11.A large number of complaints cases show that some public figures,especially politicians,are using their special status to make blatantly racist speech in the name of political debate.In response to the situation,the Committee on the Elimination of Racial Discrimination supported the applicant’s claim in the decision for Mohammed Hassan Gelle v.Denmark.91. Mohammed Hassan Gelle v.Denmark,CERD (Communication No.34/2004),6 March 2006.State Parties are required to restrict racial discrimination and hate speech,even when such speech was the subject of so-called political debate by the media or political figures.The case has also become a typical example of the regulation of racist speech.The Committee on the Elimination of Racial Discrimination further noted the fact that the lawmaker in question made a statement that negatively encompassed a group of people and was based solely on their racial or ethnic origin,although the statement was made in the context of a political debate,it does not absolve the State Party from its obligation to investigate whether or not the statements amounted to racial discrimination under theConvention.92. Ibid.,para.7.5.The Commission also emphasized that “the exercise of the right to freedom of expression carries special duties and responsibilities,in particular,the obligation not to disseminate racist ideas.”93. Ibid.

V.Current Issues: Racist Speech during the COVID-19 Pandemic

A.The tendency to legitimize racist speech during the pandemic

During the COVID-19 pandemic,political figures and the media in some countries have made public racist remarks and repeatedly used expressions such as “China virus” and “Wuhan virus” to refer to COVID-19,which are geographically specific,discriminatory and inflammatory rather than the internationally recognized terms.Some governments have cynically use hate speech directed at other parts of the world in order to deflect attention from grievances in their own societies and used them to camouflage the political grievances that must be addressed nationally.94. Committee on Elimination of Racial Discrimination Discuses Racist Hate Speech,Targeted News Service,Washington D.C.,28 August 2012.Some scholars have pointed out that certain government agencies use the background of the COVID-19 pandemic to promote and direct discrimination and prejudice against specific racial groups,which is a kind of “officially driven racial discrimination.” In fact,they hope to achieve their specific political,economic,social,cultural or even illegal or malicious purposes.95. Quoted from Mao Junxiang and Guo Min,“An Academic Summary of the Seminar on ‘Addressing Contemporary Forms of Racism: Challenges Posed by the Pandemic and the National Responses’,” Human Rights 4(2020).“Such rhetoric for achieving political ends cannot automatically fall under protective wings.Once we use well-known lies as a cover,it will immediately conflict with the premise of a democratic government and the orderly way to effectively achieve economic,social and political changes.”96. Quoted from Anthony Lewis,Freedom of Speech and Boundaries: A Brief History of the First Amendment to the US Constitution,Xu Shuang trans.(Beijing: Law Press·China,2009),57.

Such authoritative subjects as mainstream media and political figures have repeatedly made racist speech and strengthened racist feelings among the public.Meanwhile,they have constantly emphasized the importance of the right of citizens to freedom of speech in order to weaken the harmful effects of discriminatory speech on public opinion.They play a special role in the reproduction of dominant knowledge and ideology in society.The racism of the people and its manifestations are often based on the racism of the elite speech and thus aggravated or legitimized.97. R.A.V.v.St Paul,505 U.S.377 (1992).

It should be noted that certain countries with high tolerance for racist speech have developed a domestic orientation toward legitimizing discriminatory speech.It is pointed out in the report of the United States to the Human Rights Council in 2020 that “the United States does not,however,criminalize speech,expressive conduct,or publication that others find extremely offensive or harmful.The rights to speak,publish,associate,and petition for a redress of grievances could not be protected if the government could punish individuals because of differences of opinion,or if the government could prohibit speech on the basis of its content or the speaker’s viewpoint.Our state and federal courts have consistently held that government bans on speech are inconsistent with robust protections for individual rights,including freedom of expression and religion for all.”98. A/HRC/WG.6/36/USA/l,National Report Submitted in accordance with Paragraph 5 of the Annex to Human Rights Council resolution 16/21,para.24.In the above-mentioned report,the US government incorrectly defines speech regulation as “prohibiting speech on the basis of its content or the speaker’s viewpoint,” which is a negative,harmful,and amplifying interpretation of the consequence of regulation.It also deliberately confuses the regulation of discriminatory speech,that is,the balance between the values of freedom and equality,as a matter of the relationship between freedom and the harmful consequences of excessive government intervention.The US government has repeatedly emphasized that government regulation of speech is tantamount to “not protecting rights” and “undemocratic” and has reinforced it through legislative and judicial means,instead of starting from the influence of the exercise of rights on others and the protection of equal rights.Freedom of speech itself is not controversial.The problems are how to use freedom of speech by structures in the political sphere to create more pleasant iterations of racism,which in turn becomes part of the mainstream.99. Charlotte Elliott-Harvey,“Freedom of Speech at the Intersection of Racist Speech and online Political Hate Speech,” 36 European Journal of Communication 3 (2021): 305.As Habermas argues,political authority obtains legitimacy by means of law while law obtains coercive power by means of political authority.With mutual support,they engage in a circular argument of legitimacy with each other.100. Gao Hongjun,“The Freedom in American Legal Culture and its Limitations,” Tsinghua Law Review 1 (2009).In this case,due to the dual influence of the difference of group discourse power and the dominant tendency of government concept,the highly respected “freedom of speech” essentially aggravates social inequality through oppressive speech with a “legitimacy mask.”

B.Obvious negative consequences of the remarks that imply discrimination linked to COVID-19

In a report published by the Fundamental Rights Agency of the European Union on the impact of the COVID-19 pandemic on human rights,it was noted that some people have shown hatred and intolerance towards certain ethnic and racial groups,with the greatest impact being on people of Chinese and of Asian origin,or those perceived to be of Chinese or Asian origin.In Europe,persons of Asian origin,including those perceived to be of Asian origin,were denied rental housing and medical care as well as blocked from entering schools and restaurants during the pandemic.101. European Union Agency for Fundamental Rights,Coronavirus Pandemic in the EU-Fundamental Rights Implications,Luxembourg: Publications Office of the European Union,April 2020.Undoubtedly,persons of Asian origin have suffered from unemployment and discrimination during the pandemic.With the spreading of the pandemic in Western countries,the consequences of such discriminatory speech based on the politicization of the epidemic continue to develop.In the context of highly developed information networks,the rapid spread of such speech is accompanied by a more serious problem.Racist discourse in the context of digital media is often masked by satire and jokes,making it difficult to confront racism.102. Jenni Hokka and PewDiePie,“Racism and Youtube’s Neoliberalist Interpretation of Freedom of Speech”,27 The International Journal of Research into New Media Technologies 1 (2021): 143.Politicians have come forward to make overt or implied xenophobic speech.The acceptance at high levels of government of stigmatizing specific regions,specific groups and specific populations,to some extent,has only served to shift some of the individual discrimination previously recognized as intolerable to tacit approval.103. UN News feature story,April 21,2020,accessed August 23,2021,https://news.un.org/zh/story/2020/04/1055512.Discriminatory,hateful speech by public figures and the media incite the public to inflict their fear,anger,and hatred caused by death,disruption,and unemployment they face during the pandemic on specific groups of people.Groups targeted by discriminatory speech are socially marginalized because they feel demoralized,silenced and unwilling to participate in activities of the democratic society,including public debate.The reputation of the group is also lost.104. Claudia Tavani,“Freedom of Expression or Prohibition of Racial Discrimination? Stigmatisation of Roma in the Media and in Political Speech in Italy”,European Yearbook of Minority 2 (2012).It seriously affects the normal life of the people being discriminated against and causes clear damage to the rights of such groups.

C.Racial discrimination by government officials involves state responsibility

Since the outbreak of the COVID-19 pandemic,government officials in certain countries have publicly made racist comments.The virus seems to have become a reason to shirk the responsibility to fight against t discriminatory speech,which should be astate responsibility.In article 2 of theDraft Articles on Responsibility of States for Internationally Wrongful Acts,105. Report of the International Law Commission on the work at its Fifty-third Session,2001 (A/56/10),43-365.the International Law Commission noted that there is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law;and (b) constitutes a breach of an international obligation of the State.Firstly,from the perspective of imputability,an act or omission by a state organ when it acts as an official act in its capacity is an act of the state,and the state is responsible for all such acts involving violations of its international obligations.106. Robert Jennings and Arthur Watts,Oppenheim International Law,Part I Volume I,Wang Tieya et al.trans.(Beijing: Encyclopedia of China Publishing House,1995),420.Moreover,even if the behavior of a government official exceeds or violates the scope of the order or even the authority made to him,his wrongful behavior should be attributed to the state as long as he makes use of the methods or rights related to public functions.107. Antonio Casses, International Law,Cai Congyan et al.trans.(Beijing: Law Press·China,2009),326.Therefore,it is an act of the state for government officials,especially heads of state,to publicly make racist speech.Second,from the perspective of state obligations,it is emphasized in article 4 of theInternational Convention on the Elimination of All Forms of Racial Discriminationthat states parties are obligated to condemn,prohibit and punish related acts of racial discrimination,in particular in paragraph 3,which provides that states parties“shall not permit public authorities or public institutions,national or local,to promote or incite racial discrimination.” Therefore,when a state is a party to theInternational Convention on the Elimination of All Forms of Racial Discriminationand has not made reservations to the relevant provisions,racist speech is made by government officials publicly yet the state fails to take corresponding measures to regulate or avoid them will lead to the violation of theInternational Convention on the Elimination of All Forms of Racial Discrimination.Even if the State Party makes a reservation to article 4 in the name of freedom of expression,it fails to meet the requirement of article 20 of the Convention that “a reservation incompatible with the object and purpose of this Convention shall not be permitted.”

VI.Conclusion

The legislation and judicial practice of the international community on protecting freedom of speech and restricting racist speech embodies the conflict and balance between freedom and equality,two important values in a democratic society.Freedom of speech is not an absolute right and it is restricted by legal justification because of the influence of the exercise of rights on others.In the long-term judicial practice,the international community has reached a consensus that speech should not be regulated by law for its discriminatory or offensive content.Intervention and restriction of different degrees could be taken according to the subjective malice of the speaker,the factual background and consequences of racist speech,and the standards of necessity and proportionality.Although the media and political figures are subject to tolerant censorship of speech because of their special role in a democratic society,their racist speech will have a greater influence and damage the rights of specific groups to a greater extent of its extensive radiation and public guidance,so they should bear more prudent obligations.The remarks of political figures and the media that imply discrimination linked to COVID-19 during the pandemic are in fact racial discrimination under the pretextof freedom of speech for various purposes.What they did is contrary to the United Nations’ goal of eliminating all forms of racial discrimination,and corresponding state responsibility could be triggered.