Based on a comparative study of jurisprudence in hate speech cases, especially criminal cases, a consideration of judicial discretion and arbitrariness is made. The author argues that discretion – in the sense of a certain amount of latitude within the limits of the law on the part of the court in making findings and decisions – is inevitable and necessary. However, not infrequently the courts, in the administration of justice, resort to arbitrary actions, which in hate speech cases takes forms such as, in particular: selective and biased application of the law according to the ideological key; self-proclaimed expansion of the statutory catalog of groups of people protected from hate speech; failure to take into account or depreciate the argument formulated by the accused from freedom of speech or freedom of religion in their deliberations; a priori assumption that the expression of hateful content is the same as stirring up or incitement to hatred; ignoring the question of the relationship of the accused's incriminated behavior with the violation of or threat to the protected legal good, in particular public order. Judicial arbitrariness is a blatant distortion of the standards of the adjudicatory process and the role of the judiciary in the rule of law.
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