Rien que des mots: Counteracting homophobic speech in European and U.S. law

Abstract

Adopting a comparative perspective, this article examines legal means and practices of challenging homophobic speech in European and U.S. law. This exercise revolves around the study of major cases concerning homophobic speech from the law of the European Court of Human Rights and broader legal framework within the Council of Europe (the CoE), the Court of Justice of the European Union (EU) as well as the United States Supreme Court (along with a broader scrutiny of U.S. law in comparative perspective with European (CoE and EU law) in recent years. The article concludes that the concepts of (1) hate speech (in constitutional, administrative and criminal settings) (2) direct discrimination and (3) harassment (in labour and anti-discrimination law) will be central in the strategic litigation of LGBT organizations seeking to redress the climate of homophobia via various legal avenues in both Europe and the U.S. While in the settings of European law, all three concepts – depending on the context – can benefit victims of homophobia in their judicial redress, U.S. law offers coherent protection in its employment law framework, even though this remains in need of further strengthening.