Guadalajara -
In an important case of first impression, Mexico's Supreme Judicial Court today declared that anti-gay comments and "homophobic" speech are not protected by the nation's federal charter, the country's core law.
The landmark ruling made it clear that there are limits on free speech. Article 6 of the Mexican constitution provides, "The free expression of ideas shall not be the subject of judicial or administrative inquiry or trial" - language which is quite similar to guarantees found in the U.S. constitution's First Amendment. But in today's ruling, Div. 1 of the nation's highest tribunal said crude comments suggesting homosexuality is an inferior lifestyle are inherently discriminatory, and find no legitimate defense in that constitutional provision.
The case was the first in which the Mexican Supreme Judicial Court had to grapple with the question of whether "hate speech" targeting a particular group or one of its members is nonetheless protected. The court found that words like maricon (fag) and puñal (queer) enjoy no free speech protection under Mexico's constitution, since they could promote harmful stereotypes or incite violence against gays.
The litigation which gave rise to today's ruling arose in 2010 in Puebla, when two local journalists got into a war of the printed word in their respective publications. One wrote that the other was "a queer," adding that "only fags" worked for his newspaper. The subject of the insults filed a lawsuit, seeking monetary damages for injury to name and reputation. He won at trial. The losing journalist appealed, contending that his sharp language was an expression of free speech protected by the constitution. He'll now likely have to pay the lower court judgment.
Mexico's Supreme Court has plainly drawn a line in the sand which even professional journalists will cross at their own peril. Article 7 of the nation's constitution provides, "The freedom to write and to publish about any matter shall not be abridged." But the judicial ministers today made it clear that personal feuds in which harsh invective is employed purely for the purpose of insult won't be tolerated, and will enjoy no constitutional protection when disguised as a newspaper column or editorial.
Hate speech will not be the subject of criminal penalties in Mexico, but fines or other administrative sanctions could be levied against offenders, especially those who violate the law in a notorious way. Moreover, the court's decision implicitly recognizes a right to sue for alleged damages based upon homophobic communications which are ventilated in a public forum. Private communications which are not disseminated to third parties probably won't be actionable, because civil damages generally are not recoverable for "hurt feelings" unless the actor's conduct was particularly extreme or virulent.
On Feb. 27 the Supreme Court of Canada addressed a very similar question in Saskatchewan Human Rights Comm'n. v. Whatcott. That decision upheld Canada’s hate speech laws, while striking down parts of the Saskatchewan Human Rights Code which it found impinged on free speech guarantees. But in a unanimous 6-0 ruling the court said two anti-gay flyers distributed by the defendant were not protected commentary. It upheld his conviction and fine by the Saskatchewan Human Rights Tribunal.
In the United States similar issues have been resolved differently. In 2011 the U.S. Supreme Court found that a notorious Topeka, Kansas anti-gay minister and his followers had the constitutional right to picket the funeral of a Marine killed in Iraq. Their signs read, "You're going to hell", "God hates you", "Fag troops", "Semper fi fags" and "Thank God for dead soldiers." The soldier's parents then sued Fred Phelps and his Westboro Baptist Church for emotional distress, and won a jury verdict of $5 million dollars. The Supreme Court vacated the judgment, set aside the verdict and ruled in favor of Phelps, finding he had a First Amendment right to disseminate anti-gay comments in a public venue. That case is Snyder v. Phelps, 562 U.S. __ (2011), and recounts in detail the church's odious tactics. The court's vote was 8-1, with a powerfully stated dissent by Justice Alito.
Under American law, most speech is protected. But recognized exceptions to the rule are defamatory communications (libel and slander), and statements likely to incite an imminent breach of the peace (often called "fighting words"). The notion that "hate speech" is not protected by the First Amendment has been rejected by the U.S. Supreme Court in at least one case, and by most lower courts as well.
In February 2012, the European Human Rights Commission ruled the same way Mexico's Supreme Court did today.
June 26 - The U.S. Supreme Court on gay marriage, in a nutshell
Mar. 27 - Same sex marriage arrives at the U.S. Supreme Court - and at the Mexican Supreme Court
Feb. 13 - Mexico moves towards greater recognition of legal rights
Feb. 2 - Gay alliance charges Yucatán has shelved its petition for approval of same sex marriages
© MGRR 2013. All rights reserved. This article may be cited or briefly quoted with proper attribution or a hyperlink, but not reproduced without permission.
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