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Extreme Speech and Democracy$
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Ivan Hare and James Weinstein

Print publication date: 2009

Print ISBN-13: 9780199548781

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199548781.001.0001

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Cumulative Jurisprudence and Hate Speech: Sexual Orientation and Analogies to Disability, Age, and Obesity

Cumulative Jurisprudence and Hate Speech: Sexual Orientation and Analogies to Disability, Age, and Obesity

Chapter:
(p.265) 14 Cumulative Jurisprudence and Hate Speech: Sexual Orientation and Analogies to Disability, Age, and Obesity
Source:
Extreme Speech and Democracy
Author(s):

Eric Heinze

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199548781.003.0015

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex, or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. This chapter challenges that approach. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable, and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.

Keywords:   age, discrimination, free speech, gay rights, hate speech, international human rights, minorities, obesity, sexual minorities

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