When confronting hate speech in the context of elections, the key question is whether the main purpose of restricting electoral hate speech is to stave off antisystem extremists who reject democratic liberalism, or if restrictions on electoral hate speech should shape the confines of mainstream discourse as well. Courts around the world in the post-World War II (WWII) era have invoked international human rights treaties to justify restrictions on electoral hate speech that question “settled issues,” such as democracy and racial equality. Within that context, this Note uses Mexico’s electoral justice system as a case study for a new approach to electoral hate speech in which courts play a much more active role in guiding debates on highly contested social issues.

The analysis yields the conclusion that international human rights treaties are troublingly vague and consequently do not yield a definitive answer on whether Mexico’s newfound approach is permissible under international law. Hence, this Note signals the need to clarify the balance struck by international human rights treaties between the right to freedom of expression and the necessity of proscribing electoral hate speech. Finally, some preliminary remedies concerning international treaties are suggested.

The analysis is based on recent decisions issued by the Superior Chamber of Mexico’s Electoral Tribunal of the Federal Judiciary (TEPJF) that have not yet been subjected to serious scholarly analyses. In addition, it appears that no research has been published that uses Mexico’s electoral hate speech jurisprudence to show how international human rights law does not yield clear answers to important questions regarding the permissibility of hate speech in the electoral sphere.

Continue Reading “Shortcomings of International Human Rights Law Concerning Electoral Hate Speech: A Mexican Case Study Through the Lens of Comparative Law“