Contribution to the Panel: Pragmatics in the law
Hate speech in the High Courts of Justice of Spain
Victoria Guillen Nieto
University of Alicante, Spain
In his seminal work How to Do Things with Words (1975[1962]), Austin laid the pragmatic foundation of Speech Act theory, e.g. the way words can be used not only to present information but also to carry out actions. In fact, words can be employed to promote peace, solidarity and understanding or used as weapons in acts of abuse, hatred, discrimination and violence. Hate speech may be articulated through numerous socially reproachable speech acts expressing hate or instigation to violence against the Other. For example, insult, abuse, denigrate, vilify, offend, etc. These acts are, as shown by Stollznow (2011), the linguistic manifestation of both social practices, e.g. dehumanise, demonise, marginalise, stigmatise, etc, and cognitive categories of discrimination, e.g. stereotype, intolerance, prejudice, xenophobia, racism, and sexism.
The European Court of Human Rights draws our attention towards the fact that “(…) it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance.” (Factsheet – Hate Speech, July 2017). In Spanish legislation, according to article 510 of the reformed Penal Code, hate speech (discurso del odio) is felony related to individuals’ abusive exercise of fundamental rights and public liberties guaranteed by the Constitution.
For legal practitioners, hate speech is an elusive concept for various reasons. Firstly, hate speech is conceptually distinct from hate crime, because it is not based in an initial criminal act -the base offence is missing. Secondly, legal decisions to hate speech need to be carefully balanced with the fundamental right to freedom of expression. While many countries in the Organisation for Security and Co-operation in Europe (OSCE), of which Spain is a member, regulate hate speech to a greater or lesser degree, there is no consensus among them as to whether forms of expression that do not incite violence should be criminalised (Dolz Lago 2015).
This paper explores the concept of hate speech in Spanish legislation within the theoretical framework of a linguistic pragmatic theory, e.g. Speech Act Theory (Austin 1975 [1962]; Searle 1979; Searle & Vanderveken 1985; Burkhardt 1990; Alston 2000, etc.), focusing on two major notions: (a) intentionality (the action intended to be performed by a speaker in uttering a linguistic expression, by virtue of the conventional force associated with it) and (b) perlocutionary effect (the consequences or effects on the audience through the uttering of a linguistic expression). Additionally, our research is also empirical and corpus-based, because it provides an account of how High Courts of Justice in Spain interpret and appraise hate speech. The research questions we raise are:
-By what method can Speech Act Theory explain the concept of hate speech?
-By what method do courts appraise intentionality and perlocutionary effect in the hate speech act?
-Which has more impact on the court decision, the illocutionary force or the perlocutionary effect of the hate speech act?
Answering these questions will allow us to make a generalising statement about the interpretation and appraisal of hate speech in Spanish courts. For purposes of analysis, 100 cases for the crime of hate speech are randomly selected from CENDOJ database of judgments released by High Courts of Justice of Spain between 2014 and 2017. The cases are classified according to different categories: (a) type of act of discrimination, (b) types of linguistic acts, (c) social practice of discrimination and medium, and (d) cognitive category of discrimination. To measure and quantify the impact of these categories on court decisions, either acquittal or guilty verdict, Pearson’s Chi-square tests are performed.
Findings from this paper may contribute to a better understanding of the pragmatic nature of hate speech as it creates environments that are conducive to hate crimes and fuel broad-scale conflict, and ultimately smooth the process of court decision making in complex cases involving this type of language crime.