Democratic Memory and Hate Speech

Abstract

Based on the conflict between those provisions of the Law of Democratic Memory which sanction the apology of Francoism and the freedoms of thought and speech, the paper analyses the attempt of the legislator to neutralize the possible unconstitutionality of such sanctions by configuring a qualified apology through the additional alternative element of "contempt, discredit and humiliation of the dignity of the victims or their relatives" with the intention of incardinating the apology of Francoism within the framework of punishable hate speech to constitutionally legitimizing its sanction. To this end, the first constitutional jurisprudence on hate speech, the requirements of incitement and certain danger as requisites for its punishment in subsequent jurisprudence and the construction of administrative offenses of apologizing for Francoism on the model of art. 510. 2 a) of the Criminal Code --injury to the dignity of the victims through actions of humiliation, contempt or discredit—are analyzed in order to conclude that the requirement of humiliation of the victims does not guarantee a practical application of the punitive legal provisions without eroding the constitutionally protected content of the freedoms of thought and expression as exemplified by the cases of imposition of sanctions for acts contrary to democratic memory.