Constitutional identity, although remaining distinct from national identity, does like the latter carve out an imagined community. It must process and reprocess material to promote a vision that integrates the ethnos and the demos in a constitutionally viable manner. In this pursuit, the elaboration of constitutional identity relies on three principal interpretive devices: negation, metaphor, and metonymy. The objective is to integrate the polity as a whole, the individuals subject to the constitution, and the plurality of groups within the nation that possess a legitimate claim to constitutional recognition. The resulting construct must draw on national identity to reinforce unity and depart from the latter where necessary to maintain constitutional integrity – e.g., to deescalate ethnic strife within the polity by banning ethnic-based political parties. The turn to populism poses a challenge that calls upon reframing constitutional identity. Indeed, as populism by its very nature casts only part of the people as the people, and labels those not included as the enemy, it calls for disaggregating and recombining existing liberal constitutional identities. We illustrate the adverse effect of populism’s recourse to ethnic cleavages and to religion in reframing constitutional identity through the salient example of Viktor Orban’s Hungary.

Introduction

Hate speech – that is, speech designed to promote hatred on the basis of race, religion, ethnicity, or national origin – poses vexing and complex problems for contemporary constitutional rights to freedom of expression. The constitutional treatment of these problems, moreover, has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary from one setting to the next. There is, however, a big divide between the United States and other western democracies. In the United States, hate speech is given wide constitutional protection, whereas under international human rights covenants and in other western democracies, such as Canada, Germany, and the United Kingdom, it is largely prohibited and subjected to criminal sanctions.

The contrasting approaches adopted by the United States and other western democracies afford a special opportunity to embark on a comparative analysis of the difficult problems posed by hate speech and of the various possible solutions to them. As we shall see, in the United States, hate speech and the best ways to cope with it are conceived differently than in most other western democracies. This is due, in part, to differences in social context, and, in part, to differences in approach. It may be tempting, therefore, to endorse a purely contextual approach to hate speech encompassing a broad array of diverse constitutional responses ranging from American laissez faire to German vigilance. Given the trend toward globalization and the instant transnational reach of the Internet, however, a purely contextual approach would seem insufficient, if not downright inadequate. For example, much neo-Nazi propaganda is now generated in California and transmitted through the Internet to countries like Canada or Germany where neo-Nazi groups have established a much more significant foothold than in the United States. Inasmuch as such propaganda generally amounts to protected speech in the United States, there seems to be little that can be done to limit its spread beyond American soil. Does that justify calling for a change of constitutional jurisprudence in the United States? Or, more generally, do present circumstances warrant a systematic rethinking of constitutional approaches to hate speech?