Freedom of Expression Does Not Protect Hate Speech That Incites Violence

Where does freedom of expression end and a hate crime begin? The Supreme Court has redrawn that line in a ruling on the dissemination of social media messages against unaccompanied foreign minors. The decision upholds the conviction handed down by the lower courts and adds doctrine of interest concerning Article 510 of the Criminal Code (CP) and its constitutional limits.

The case and the Supreme Court's ruling

The Criminal Chamber of the Supreme Court, in cassation appeal 7159/2023, decided on 26 February 2026 the appeal against a hate-crime conviction. The convicted person had spread on social media disparaging and inciting messages directed at unaccompanied foreign minors, a group protected on grounds of national origin and their status as minors.

The Chamber upheld the conviction in full. In its reasoning it stressed that freedom of expression, although a first-order right recognised in Article 20 of the Constitution, is not unlimited: its exercise does not protect speech that incites violence on grounds of race or beliefs. The appeal failed to persuade the Chamber that the messages amounted to mere critical opinion — however uncomfortable — rather than crossing the incitement threshold required by the offence.

Article 510 CP: what it punishes and what it does not

Article 510 CP penalises those who publicly encourage, promote or incite, directly or indirectly, hatred, hostility, discrimination or violence against a group or its members on grounds of race, ethnicity, national origin, sex, religion, sexual orientation, illness or other protected characteristics. It also criminalises the dissemination of content that humiliates or degrades those groups.

Three elements define the offence:

• Publicity: the conduct must reach an indeterminate number of people. Social media, by its potentially unlimited reach, ordinarily satisfies this requirement, and case law has expressly recognised that dissemination on the internet can aggravate the sentence.
• Direction at a protected group: the message must be aimed at a collective identified by its characteristics (race, religion, origin, etc.). Generic criticism of a public policy is not enough.
• Incitement, not mere opinion: the conduct must go beyond expressing disagreement or rejection — even harshly — to become a call, direct or veiled, to hostile or violent action against the group.

Freedom of expression: a preferentially positioned right

The Supreme Court and the Constitutional Court have recognised that freedom of expression occupies a preferential position in the system of fundamental rights, precisely because it is a prerequisite for democratic debate. This requires restrictive interpretation of criminal offences that limit it, and a balancing exercise before convicting.

Settled doctrine distinguishes between:

• Hurtful or uncomfortable opinion: falls within the protected sphere. Criticising a religion, questioning a migration policy or expressing rejection of a group, even in harsh terms, forms part of legitimate debate in a democratic society.
• Hate speech properly so called: goes beyond that sphere when the expression aims to inflame hostility or violence against the group, uses degrading stereotypes to dehumanise it or incites discriminatory action.

The European Court of Human Rights, in doctrine adopted by Spanish courts, applies what is known as the proportionality test: a conviction is justified only if the interference with freedom of expression is necessary in a democratic society and responds to a pressing social need. Context, audience, tone and the literal wording of the message are therefore factors the court cannot ignore.

Social media as a channel of dissemination

The Supreme Court's case law has addressed hate crime in the digital environment with increasing frequency in recent years. The potentially massive reach of a social media post has a dual effect:

• It easily satisfies the publicity requirement of Article 510 CP.
• It can operate as a circumstance aggravating the sentence, given that the provision contains an aggravated form for offences committed via the internet or other means that facilitate dissemination.

However, the Chamber has also warned that potential virality does not turn every controversial expression into a crime. The key remains the content of the message and its objective capacity to incite hostility against the protected group, not the number of times it has been shared.

Implications for the defence

Where conduct allegedly amounting to a hate crime is being investigated or tried, the defence has broad scope for action centred on constitutional balancing:

• Contextualising the message: showing that the expression, read in its actual context — satire, political debate, social commentary — does not reach the incitement threshold.
• Absence of inciting intent: Article 510 CP requires intent; if the author was not seeking to promote hatred or violence, that intent must be established or at least cast into doubt.
• Proportionality of the sentence: even where the offence is found, the defence can press for a minimal criminal response or the application of the most favourable mitigating factor, bearing in mind that the principle of minimum intervention also operates in this area.

The Supreme Court's February 2026 ruling recalls that the analysis is always case-specific and that neither the severity of the language used nor the sensitivity of the subject exempts the court from carrying out that balancing exercise.

What this doctrine contributes

The judgment consolidates a clear line of case law: freedom of expression is not an absolute shield, but neither is the hate-crime offence one of automatic application. The boundary lies in incitement: a message that aims to inflame hostility or violence against a group defined by its protected characteristics falls outside the protection of Article 20 of the Constitution and within Article 510 CP. Courts must carry out that balancing exercise rigorously, and the defence has both the right and the burden to demand it.