The only neutral method to distil the ‘performative’ (discriminating, inciting xenophobia or provoking hostility) potential of speech is essentially rooted in epistemic paternalism. It stems from the idyllic belief in some expert ability to find the truth. The imagined expert is expected to catalogue various expressions, taking into account the historical, political, socio-linguistic, forensic, and numerous other contextualizations of speech. Roughly equivalent to speech act theory, this assumption signifies that certain types of speech do not just sound or appear in the semiotic space, but carry with them an action. In this respect, the standard of proof developed by the European Court of Human Rights (ECtHR) in hate speech cases has been largely driven by the (explicitly or implicitly cited) expert conclusions. In order to evaluate this role of experts within the standard of proof employed by the Strasbourg Court, I revisit recent (2008–2012) hate speech cases from the ECtHR and distinguish them into three streams. What unites all three streams is the epistemic convenience of the Court in granting a wide margin of appreciation to the respective States. Yet on a closer reading, it appears that Strasbourg judges have been mixing largely incompatible methodologies in order to achieve that low (non-intrusive) standard.
|Title of host publication||Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation|
|Editors||L. Gruszczynski, W. Werner|
|Place of Publication||Oxford|
|Publisher||Oxford University press|
|Publication status||Published - 2014|