Censorship as ‘Tolerance’

By Jacob Mchangama, NATIONAL REVIEW

    There is a pan-European consensus, fertilized by multiculturalism, that tolerance and peaceful coexistence require the restriction rather than the protection of freedom of speech.

In 1670, the Dutch philosopher Baruch Spinoza wrote an emphatic defense of freedom of thought and speech. Spinoza affirmed that freedom of expression is a universal and inalienable right and concluded: “Hence it is that that authority which is exerted over the mind is characterized as tyrannical.” He also argued that freedom of expression is indispensable for peaceful coexistence between members of different faiths and races in a diverse society, holding up as an example 17th-century Amsterdam, “where the fruits of this liberty of thought and opinion are seen in its wonderful increase, and testified to by the admiration of every people. In this most flourishing republic and noble city, men of every nation, and creed, and sect live together in the utmost harmony.”

In modern-day Europe, Spinoza’s insight has not so much been forgotten as turned on its head. There is a pan-European consensus, fertilized by multiculturalism, that tolerance and peaceful coexistence require the restriction rather than the protection of freedom of speech. This has led to the mushrooming of hate-speech and so-called anti-discrimination laws that criminalize expressions characterized as “hateful” or merely “derogatory” toward members of religious, ethnic, national, or racial groups.

The most prominent victim of hate-speech laws is Dutch politician Geert Wilders, who is currently facing charges of insulting Islam and inciting hatred and discrimination against Muslims; in 2009, he was absurdly denied entry to the United Kingdom on the basis of his views. But the Wilders trial is far from unique. In the U.K., Harry Taylor, an atheist campaigner for “reason and rationality,” was sentenced to a six-month suspended prison term and banned from distributing “offensive material.” Taylor’s crime was leaving satirical caricatures of Jesus, the pope, and Mohammed in a multi-faith prayer room at Liverpool’s John Lennon Airport. According to the jury, the caricatures constituted “religiously aggravated intentional harassment, alarm or distress.” In Belgium, the admittedly quasi-fascist Flemish-nationalist party Vlaams Blok (now Vlaams Belang) was convicted of racism in 2004. In Denmark, where freedom of speech is often given greater weight than elsewhere in Europe, more than 40 persons have been convicted of hate speech since 2000.

Should European victims of hate-speech laws turn for protection to the plethora of human-rights conventions signed by European states, they will discover that no help is forthcoming. The European Court of Human Rights has decided that hate speech is not protected by the European Convention on Human Rights, and the same court has also sanctioned the seizure and censorship of “blasphemous” films and books that insult religious feelings. It distinguishes between expressions that constitute “gratuitous offence” or aim to “destroy the rights of others” and expressions that “contribute to a question of indisputable public interest” — a hopelessly arbitrary standard that turns the very court that is supposed to safeguard freedom of expression into the ultimate censor.

The EU recently adopted a framework decision obligating all 27 member states to criminalize hate speech. This precludes even a unanimous national parliament from abolishing or easing its hate-speech laws. One might have expected the EU’s rights watchdog, the Fundamental Rights Agency, to be up in arms about this development, but think again: The agency “very much welcomes” the framework decision and is actively lobbying for new EU-wide legislation extending hate-speech laws to cover sexual orientation and gender identity.

Human-rights agencies are sympathetic to hate-speech laws partly because international human-rights con­ventions at the United Nations were instrumental in globalizing and mainstreaming them. The U.N.’s International Cov­e­nant on Civil and Political Rights (ICCPR) recognizes a right to freedom of expression, but it also states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

The first working draft, as early as 1947, included only incitement to violence — universally recognized as a permissible ground for restricting freedom of expression — but the Soviet Union, Poland, and France wanted to include incitement to hatred as well. This was met by resistance from most Western states; the U.S. representative, Eleanor Roosevelt, hardly a libertarian, called the prohibition of incitement to hatred “extremely dangerous.” The U.K., Sweden, Australia, Denmark, and most other Western democracies opposed the criminalization of free expression, counseling that fanaticism should be countered through open debate instead.

But these objections did not impress the majority of the U.N.’s member states — Saudi Arabia asserted at the time that Western “confidence in human intelligence was perhaps a little excessive” — and the “incitement to hatred” language was kept in. So it was that a coalition of totalitarian socialist states and Third World countries, many of them ruled by authoritarians, succeeded in turning a human-rights convention into an instrument of censorship.

But things were to get worse. In 1965, the U.N. adopted the Convention for the Elimination of All Forms of Racial Discrimination (CERD). CERD obliges states to criminalize “all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination.” Once again, the West was pitted against socialist states and Third World countries with questionable human-rights records, and once again the West came up short. Thus, in the name of human rights, the state was entrusted with an obligation not only to ensure equal protection before the law but to eliminate racial discrimination as such, even in the private sphere, through criminal law. It is not surprising that such an instrument of oppression should appeal to the totalitarian regimes behind the Iron Curtain, which were already skilled in eliminating “undesirable” views through systematic censorship or, if need be, the gulags.

Despite their initial opposition, most Western states ratified both ICCPR and CERD, and European countries from Austria to Sweden accordingly moved to restrict freedom of expression.

The U.N.’s efforts to eliminate hate speech continue to this day. In 1989, several members of the Committee on the Elimination of Racial Discrimination criticized France for allowing Salman Rushdie’s Satanic Verses to be published, calling the book an incitement to “racial hatred.” None other than the U.N.’s special rapporteur on freedom of expression, supposedly the U.N.’s guardian of free speech, publicly condemned both the Mo­hammed cartoons and Geert Wilders’s film Fitna. For more than ten years, the Islamic states of the OIC have pushed for criminalizing so-called defamation of religion; their most recent effort concerned a convention to target “cybercrime,” including offensive online content. Why has the OIC targeted cybercrime? Because the European states criminalized online hate speech in 2003, and the OIC expects it will be difficult for Europeans to resist its agenda without appearing hypocritical (not to mention Islamophobic). Hate-speech laws have also spread beyond Europe to Canada, New Zealand, and Australia. This leaves the U.S. as the sole Western country with sufficient confidence in reason to let its citizens express themselves freely.

The ubiquitous European hate-speech laws represent a clear and present danger to freedom of expression in the Western world. Not only do they interfere with the basic right of the individual to speak his or her mind even if it causes offense, they are inherently arbitrary and prone to abuse. The determination of which expressions are “hateful” or “derogatory” is highly subjective; the atheist and the fervent believer are unlikely to agree on where the limits of religious satire should be drawn. And in an era of identity politics, when people are encouraged to think of themselves primarily as members of racial, religious, or ethnic groups with special rights rather than as individual citizens with equal rights before the law, “racism” and “hatred” have become very broad concepts indeed.

Moreover, the question of which groups get hate-crime protections depends on political favor. During the Cold War, the gravest danger to the West, indeed the world, stemmed not from the resurrection of racist fascism but from totalitarian socialism. Yet in 1973, a leading Danish socialist was free to declare that “in order for the workers to live they must kill the capitalists. In order for the working class to seize power, it must send the bourgeoisie to its death.” Today, Communism and doctrinaire socialism are almost dead in most European states. But the demise of Com­munism was not achieved by criminalizing this dangerous ideology; it was achieved by, among other things, a vigorous war of ideas that convinced most people that Communism is not only unworkable, but deadly in the extreme.

The Holocaust was still fresh in the minds of those who drafted the hate-speech-related U.N. conventions during the 1950s and ’60s, and fresh memories of Nazi atrocities helped them to get those conventions passed. A lax attitude to Nazi propaganda, their argument went, had helped pave the way for Nazi rule and the annihilation of millions of Jews. But justifying hate-speech laws with reference to the Holocaust ignores some crucial points. Contrary to common perceptions, Weimar Germany was not indifferent to Nazi propaganda; several Nazis were convicted for anti-Semitic outbursts. One of the most vicious Jew-baiters of the era was Julius Streicher, who edited the Nazi newspaper Der Stürmer; he was twice convicted of causing “offenses against religion” with his virulently anti-Semitic speeches and writings. Hitler himself was prohibited from speaking publicly in several German jurisdictions in 1925. None of this prevented Streicher from increasing the circulation of Der Stürmer, or Hitler from assuming power. The trials and bans merely gave them publicity, with Streicher and Hitler cunningly casting themselves as victims.

Perhaps even more important, when the Nazis swept to power in 1933, they abolished freedom of expression. Nazi propaganda became official truth that could not be opposed, ridiculed, or challenged with dissenting views or new information. Such a mono­poly on “truth” is impossible in a society with unfettered freedom of expression, where all information and viewpoints are subject to intense public debate. While Germans were being brainwashed into hating Jews and acquiescing to the Holocaust, their Lutheran brethren to the north in Denmark — which maintained a free press until it was occupied in 1940 — saved most of their country’s Jews from extermination.

By empowering an active civil society, freedom of expression can thus be said to include its own safety valve against hatred, propaganda, and racism. There is no clear evidence that hate-speech laws foster a higher degree of racial and religious tolerance or help eradicate racism, and it is in any case both condescending and oppressive for the government to presume it knows which views and information its citizens can be trusted to express. Allowing the unquestionably racist and bigoted to speak their minds does not imply official endorsement of their views, just as declining to criminalize adultery does not imply state endorsement. Racism, religious hatred, and homophobia can and must be combated through an open and unfettered debate. When confronted with genuine hatred, it is perfectly possible — and morally imperative — to heed Holocaust survivor Elie Wiesel’s warning that “indifference is not an option” without resorting to coercion and thought control.

In the United States, the First Amendment prohibits hate-speech laws. This has been compatible with, and has plausibly contributed to, the decline of racism. The Ku Klux Klan is no longer a dominant force in southern politics. In 1958, 4 percent of Americans approved of interracial marriage; in 2007, 77 percent did. A Pew study in 2010 showed that large majorities of blacks and whites think their values have become more similar during the past ten years, and that more black Americans blame personal behavior for “blacks who don’t get ahead” than blame racism.

When it comes to religious tolerance, the U.S. also stands out. According to a 2010 poll in the Financial Times, a full 70 percent of the French and 57 percent of Britons support banning the burqa, compared with only 33 percent of Americans. This American tolerance is hardly born out of sympathy for the ideology the burqa represents, which is responsible for many dead American soldiers in Afghanistan. Rather, Americans hold that the dangers of allowing the state to regulate religious expression greatly outweigh its uncertain benefits.

While perhaps not perfect, the American approach is a vindi­cation of Spinoza’s belief in freedom of expression as the oxygen of a diverse society. The European commitment to hate-speech laws, on the other hand, is impossible to reconcile with the Enlightenment values that most Europeans would like to think their societies are committed to.

— Jacob Mchangama is head of legal affairs at the Danish Center for Political Studies, lecturer on international human-rights law at the University of Copenhagen, and co-founder of Fri Debat, a Danish-based network committed to the protection of freedom of expression. This article originally appeared in the July 19, 2010, issue of National Review.

July 15, 2010 | 4 Comments »

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  1. Part 3

    Americans are reasonable. They will rise against affirmative action and takeover of their cities by aliens. Jews from the ACLU and other leftist organizations will be considered a proxy for other Jews, just like the deeds of Jewish communists were blamed on all Jews. The Left will also blame the Jews for the ostensible misdeeds of Israelis toward Arabs. Anti-Semitism will rise.

    Jews need liberalism, not leftism. Leftists are more self-righteous than even average Jews, and suppress dissent and social evolution.

    Liberalism, like any theory, turns into its opposite when taken to the extreme. Freedom of speech shouldn’t extend to freedom to expressing ideas which close the freedom of speech. Radical Islam and moral deviations must be denied their expression.

    Jewish barons, the immoral self-appointed Jewish leaders, confirm the moral degradation of Jews in Gentile eyes.

    The Right, the true liberals, are not certain if they are correct, and do not press their demands. The Left, narrow-minded, are certain of their truth, and push their demands at any cost to society. The Left thus ascend to power, while the right can only sporadically be elected to mitigate the damage society has suffered from Leftist activism. In strong but theoretically liberal states, the left have taken charge of welfare distribution and bribed the voters. Leftists are active while conservatives are passive, defending the old values. continued:

  2. Part 2

    Threat of violence forces adjustment and accommodation. When public discussion of violent means is prohibited, people imagine safety and do not adjust to their enemies. Discontent balloons. Slow perpetual readjustment among various groups gives way to accumulation of hatred which eventually erupts in major bloodshed.

    It is not incidental that communist countries suppressed free speech. The left push a very wrong policy of social engineering. They set shining goals, presume the subject societies mathematically rational and susceptible to planning, and mandate the policies to reach the desired goals. Free speech harms the left on three counts: it introduces new ideas which weren’t included in the original calculations, questions the goals and policies, and proves the rationalist policies wrong. In the ostensibly free countries, the left cannot suppress all free speech, but jump on the opportunity to suppress the views most hostile to their policies. The views most critical of the current policies are, by definition, extremist. Switching to a different policy is not simple, and requires many changes, clashes, and perhaps violence. Principled opponents of the left thus are called to extremism and violence. The only alternative is social engineering.:continued

  3. Leftists embarked on a crusade to exterminate hate speech. Initially, the idea was reasonable: to stop the hostile propaganda, that of Neo-Nazis and Islamic radicals. In the spirit of political correctness and equality, the premise was generalized and all hate speech outlawed. Fighting the enemies (Nazis and Islamists) gave way to fighting extreme ideas in general, and even stylistics.
    Extreme views are indispensable to societies. Atheism, secularism, democracy, and workers’ welfare were originally extreme ideas.
    Nor could violence be opposed per se. Nazism was overturned by violence, and Soviet communism – by threat of violence. The American North used violence against the South. Violence overturned monarchies and totalitarian regimes. Violence established all modern states and shaped their borders. Threat of police violence keeps criminals at bay.

    Rejection of extremism and violence preserves status quo, but circumstances change, and status quo becomes untenable. Absent of long-term discussion of other – including extreme – views, accidental views will come to power. They will fail, and people will try other views. Societies that suppress discussion and evolution of ideas fail in convulsions. :continued

  4. Once we step onto the sleazy road of questioning moral values, the fall is very fast. Just forty years ago, American society—liberal by any standard—overwhelmingly opposed pornography even in the most discreet settings; recall the legal debate over Deep Throat, which was only shown in adult movie theaters. Now the issue of artistic value is moot, and any pornography is protected under the freedom of speech statute. Likewise with homosexuality, which was obscene decades ago. Now we see homosexual marriage, adoption, and homosexual “rabbis.”

    Freedoms, like everything, are highly destructive and almost useless at the margins. A freedom of entertainment in the privacy of one’s home needs not extend to the marginal freedom of homosexual “marriage.” The Bible is not overly restrictive: for example, it accepts non-Jewish prostitution matter-of-factly, such as in the Judah and Tamar episode. Pornography is very different from prostitution in its reach: prostitutes are very few even in Israel, and they don’t substantially degrade public morality; pornography, on the other hand, is ubiquitous.

    Restrictions on marginal freedoms are not necessarily detrimental to societal evolution. The evolution of morals is questionable in the first place; prostitution is as fringe an activity now as four thousand years ago. All societies criminalize some behavior; revolutionaries seek to overcome the prohibitions. Imagine a society which allows everything: it would soon be ruined by mad social experimentation. It is right for societies to erect entry barriers to new ideas and ostensibly new values: their adherents have to overcome the initial hostility, even if illegally, and convince the majority that their ideas are viable. In such a way, viable ideas proliferate eventually, while the wrong ideas are filtered out. One example is the anti-slavery movement, which was illegal originally but convinced most people in time. Such incremental, slow-paced evolution might be abominable to social reformers, but the only alternative would be allowing everything, down to Nazi groupings, KKK gatherings, and drug addiction. If it is legal to ban racism, a political theory, then how much more legal should it be to ban pornography?

    Libertarians counter that since “one man’s freedom to swing his fist ends at the tip of another man’s nose,” there will always be ample opportunity to restrict harmful freedoms. That is not so at least because in real life the noses are not clear-cut. Besides, the constant swinging of fists pushes the noses back and back. And more often than not, the nose’s owner has no time to react. We may not like the spread of pornography, but by now it is so well ensconced in liberal society that driving it back seems impossible.

    A typical libertarian argument is that a country which suppresses some expression will eventually suppress much wider expression, even including political speech. That is nonsense. Societies constantly balance opposing objectives. That’s what the system of checks and balances is for. The libertarian argument can be applied to the government: every government tends to assume the most powers, so shall we dismantle the governments? No, but we keep them in check, theoretically, with judicial review. Contrary to the argument, it is the very equating of freedoms that dilutes them.

    America enjoyed excellent freedom of political expression for two centuries when pornography was prohibited. After pornography became protected under the same freedom of expression statute as political speech, both of them became censored simultaneously.

    The media and web hosting providers, who refuse publicity to child porn, also refuse publicity to “hate speech” and other controversial political expression. That is so simple: if pornography and political speech are both “expression” in the constitutional sense, if both of them enjoy the same First Amendment protection, then logically the same restrictions should apply for both. Indeed, it would be very non-liberal to censor one type of expression (porn) but not the other (political speech). Here we see a typical sophistic problem: expanding the term’s meaning undermines it. Once freedom of expression is construed to cover pornography, and while some restrictions on pornography are universally accepted, the same restrictions are applied to any expression.

    The liberals who fought for legitimizing pornography in the 1960s, sowed the seeds of the current restrictions on free political speech.