PART FIVE: DISCRIMINATION AND EXPRESSION SUMMARY • Expression and communication can be components of conduct giving rise to ground-based harassment, a proscribed act within the law on the prohibition of discrimination. • Expression and communication also play other roles in anti-discrimination law, including, potentially, as evidence of intention or motive, as well as in cases concerning an instruction to discriminate. • States must prohibit incitement to violence, discrimination and hostility or hatred on all grounds recognized under international law, including, but not limited to, age, disability, gender expression and gender identity, nationality, race or ethnicity, religion, sex, sex characteristics and sexual orientation. • International law also requires that States condemn all propaganda and all organizations that are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or that attempt to justify or promote racial hatred and discrimination in any form. • Prohibition does not necessarily mean criminalization. States should distinguish between expression that requires criminalization, expression that requires civil or administrative penalties and expression that merits other forms of response. • States should ensure that the application of measures to combat hate speech does not result in any form of discrimination against any person or group. • Hate speech should, inter alia, be addressed with positive interventions: education, awareness-raising, support for victims to enable counter-speech and the dissemination of positive narratives, including by public information campaigns with positive, diversity-celebratory messaging. One common area of inquiry by lawmakers and policymakers working on laws prohibiting discrimination concerns the line between rules concerning hate speech, on the one hand, and anti-discrimination law, on the other. PART FIVE The relationship between the right to non-discrimination and acts of expression is a complex, multifaceted one. As a broad matter, there is a tendency to try to create a categorization involving three purportedly isolated domains: (a) thought; (b) expression; and (c) action. As set out below, the first area – thought – is excluded absolutely from the ambit of the law. What occurs in the mind is absolutely protected. In some conceptions of anti-discrimination law, there is an effort to identify a high wall between the second two elements – i.e. between expression, on the one hand, and action, on the other. In this simplified description, anti-discrimination law covers different treatment or impact (i.e. the third category) and not the second category, i.e. expression. As will be seen, this is an oversimplification. Expression plays a role in a number of areas of anti-discrimination law. The current chapter explores some of these areas and then examines more broadly matters related to hate speech; incitement to hostility, discrimination or violence; and related questions seen through the prism of the right to freedom of expression. These include recent global developments surrounding discussions of hate speech. In light of this multidimensional relationship between discrimination and expression and the absence of global consensus on many of these issues, there is no attempt in the present guide to draw concrete conclusions. Rather, the aim of this present chapter is to trace some of the legal issues arising in areas in which speech and other forms of expression interact with anti-discrimination law. The current section examines aspects of these questions. 173