HATE SPEECH AND CONSTITUTIONAL DEMOCRACY IN EASTERN EUROPE: TRANSITIONAL AND MILITANT? (CZECH REPUBLIC, HUNGARY AND POLAND)

This article departs from the normative assumptions about the status of militant democracy in transitional countries, while drawing on the constitutional appraisal of free speech and non-discrimination in Central and Eastern Europe during the period 1990-2012. It explores two models ('American' and 'European') of legal engagement with hate speech, targeting this recurrent constitutional theme to trace the militant in the transitional discourse on freedom of expression. The study scrutinises the legislative framework and the adjudication of the higher courts (constitutional, supreme and appellate courts) in three selected countries of Central and Eastern Europe - the Czech Republic, Hungary and Poland - in an effort to address the dearth of literature in the English language on hate speech laws and policies in these jurisdictions. The author concludes that the discourse on transitional democracy in this post-communist constitutionalism has been substantially constructed as a form of militant democracy, despite some visible influence of the American free speech narrative.