Censorship as ‘Tolerance’

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.