TERRORIST ATTACKS, and the emotions they spawn, almost always prompt calls for fundamental legal rights to be curtailed in the name of preventing future attacks. The formula by now is routine: The victims of the horrific violence are held up as proof that there must be restrictions on advocating whatever ideology motivated the killer to act.
In 2006, after a series of attacks carried out by Muslims, Republican Newt Gingrich called for “a serious debate about the First Amendment” so that “those who would fight outside the rules of law, those who would use weapons of mass destruction, and those who would target civilians are, in fact, subject to a totally different set of rules.”
Of Islamic radicals, the former U.S. speaker of the House argued that they do not believe in the Constitution or free speech, and the U.S. should thus “use every technology we can find to break up their capacity to use the Internet, to break up their capacity to use free speech, and to go after people who want to kill us to stop them from recruiting people.” In an essaydefending his remarks, Gingrich argued that “free speech should not be an acceptable cover for people who are planning to kill other people who have inalienable rights of their own,” adding that “the fact is not all speech is permitted under the Constitution.”
The white nationalist violence at Charlottesville has led to similar arguments. While polling data and anecdotal evidence have long shown an erosion in the belief in free speech among younger Americans, including those who identify as liberals or leftists, Charlottesville has prompted a full-scale debate about the merits of preserving the right to express “hate speech,” however that might be defined.
An excellent Guardian article on Monday by Julia Carrie Wong examines the implications of the growing liberal/left desire for “hate speech” to be restricted — either by the state wielding the power of “hate speech” laws or by private tech executives prohibiting the use of their platforms to disseminate what they regard as “hateful ideas.” As Wong correctly notes, “Many Americans increasingly favor European-style limitations on hate speech.” Numerous op-eds and blogposts have been published recently explicitly calling for such restrictions. As a result, it is well worth examining how those “European-style limitations” operate in practice, and against whom they are applied.
MANY AMERICANS WHO long for Europe’s hate speech restrictions assume that those laws are used to outlaw and punish expression of the bigoted ideas they most hate: racism, homophobia, Islamophobia, misogyny. Often, such laws are used that way. There are numerous cases in western Europe and Canada of far-right extremists being arrested, fined, or even jailed for publicly spouting that type of overt bigotry.
But hate speech restrictions are used in those countries to suppress, outlaw, and punish more than far-right bigotry. Those laws have frequently been used to constrain and sanction a wide range of political views that many left-wing censorship advocates would never dream could be deemed “hateful,” and even against opinions which many of them likely share.
France is probably the most extreme case of hate speech laws being abused in this manner. In 2015, France’s highest court upheld the criminal conviction of 12 pro-Palestinian activists for violating restrictions against hate speech. Their crime? Wearing T-shirts that advocated a boycott of Israel — “Long live Palestine, boycott Israel,” the shirts read — which, the court ruled, violated French law that “prescribes imprisonment or a fine of up to $50,000 for parties that ‘provoke discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion.'”
As we reported at the time, France’s use of hate speech laws to outlaw activism against Israeli policy — on the grounds that it constitutes “anti-Semitism” and hatred against people for their national origin — is part of a worldwide trend. In May of last year, Canada’s then-conservative government threatened to use the nation’s rigorous hate speech laws to prosecute Israel boycott advocates on the ground that such activism is “the new face of anti-Semitism.” As Haaretz reported about the French prosecutions: “Pro-Israel activists in neighboring Belgium are pushing for a similar law to Lellouche, hoping it might also put a dent in BDS activities in that country.” Other French activists have been convicted of “inciting racial hatred” for applying boycott stickers to vegetables imported from Israel.
There can be little question that if the power to ban “hate speech” were vested in the hands of U.S. officials or courts, the same thing would happen. It is a virtually unquestioned bipartisan consensus that advocating a boycott of Israel constitutes hatred and anti-Semitism. In her 2016 AIPAC speech, Hillary Clinton cited the boycott movement as evidence that “anti-Semitism is on the rise across the world.” A group of bipartisan U.S. legislators are currently sponsoring legislation to make it illegal for businesses to participate in any international boycott of Israel, a bill that the American Civil Liberties Union says can be used to criminalize advocacy of boycotts.
Pro-Israel students often claim that advocating a boycott of Israel is tantamount to campus “bullying” and anti-Semitism. Campus censorship principles in the U.S. are most often applied against pro-Palestinian groups.
Does anyone doubt that high on the list of “hate speech” for many U.S. officials, judges, and functionaries would be groups, such as Black Lives Matter and antifa, far-left groups that fight against white supremacists? Some GOP-controlled state legislatures are already arguing that BLM should be officially classified as a “hate group.” Beyond what many officials say is the group’s hatred for police officers, they also “point to its platform that accuses Israel of carrying out genocide against the Palestinians.”
In the UK, “hate speech” has come to include anyone expressing virulent criticism of UK soldiers fighting in war. In 2012, a British Muslim teenager, Azhar Ahmed, was arrested for committing a “racially aggravated public order offence.” His crime? After British soldiers were killed in Afghanistan, he cited on his Facebook page the countless innocent Afghans killed by British soldiers and wrote: “All soldiers should DIE & go to HELL! THE LOWLIFE F*****N SCUM! gotta problem go cry at your soldiers grave & wish him hell because that where he is going.”
The police spokesperson justifying the teenager’s arrest said: “He didn’t make his point very well, and that is why he has landed himself in bother.” So those of you craving European-style hate speech laws want to empower the police — and then judges — to decide when a point is sufficiently ill-made and offensive to justify arrest. Ahmed escaped a jail term, and was ultimately given “merely” a fine and community service, but only“because he quickly took down his unpleasant posting and tried to apologise to those he offended.”
Writing about the Ahmed case in The Independent, journalist Jerome Taylor documented how “hate speech” laws in the UK have rapidly expanded to include any opinions deemed upsetting: “In recent years we have increasingly begun to criminalise the offensive, a precedent that should be deeply worrying for anyone who cares about the importance of free speech.” In The Guardian, Richard Seymour went further and said that “Ahmed is the latest victim of a concerted effort to redefine racism as ‘anything that could conceivably offend white people.'”
This is how hate speech laws are used in virtually every country in which they exist: not only to punish the types of right-wing bigotry that many advocates believe will be suppressed, but also a wide range of views that many on the left believe should be permissible, if not outright accepted. Of course that’s true: Ultimately, what constitutes “hate speech” will be decided by majorities, which means that it is minority views that are vulnerable to suppression.
In 2010, a militant atheist was given a six-month suspended sentence for leaving anti-Christian and anti-Islam fliers in a religious room of the Liverpool airport; according to the BBC, “jurors found him guilty of causing religiously aggravated intentional harassment.” In Singapore, “hate speech” laws are routinely used to punish human rights activists who criticize Christianity, or Muslims who have defended or promoted sermons from imams deemed too critical of other religions. Cases in Turkey are commonwhere citizens have been prosecuted under hate speech laws for criticizing government officials or the military. Radical imams are prosecuted in Europe if they are too strident in their support for sharia law or their defense of violence against western aggression.
A leftist activist in France was convicted and fined for insulting former French President Nicolas Sarkozy by holding a sign that said “get lost, jerk”; ironically, those were the exact words Sarkozy himself uttered when a citizen refused to shake his hand at a public fair (the European Court of Human Rights ultimately overturned the Frenchman’s conviction). In 2013, as Salon’s Nico Lang reported, “judges fined Laure Pora, the former head of the Paris chapter of ACT UP, 2,300 euros for using the term [“homophobe”] during a 2013 demonstration against the pro-life group Lejeune Foundation and La Manif Pour Tous.”
A 2015 report from Freedom House documented that “internet freedom around the world has declined for the fifth consecutive year, with more governments censoring information of public interest.” Specifically, “state authorities have also jailed more users for their online writings.” The report documented that free speech protections are declining in roughly half the countries they surveyed. “The most significant declines occurred in Libya, Ukraine, and France,” where “standing declined primarily due to problematic policies adopted in the aftermath of the Charlie Hebdo terrorist attack, such as restrictions on content that could be seen as ‘apology for terrorism,’ prosecutions of users, and significantly increased surveillance.”
Earlier this week, the German government ordered an influential left-wing website shut down on the ground that it “stirred up” unrest at the G-20 summit in Hamburg and was used to incite violence. Calling the site the “most influential online platform for vicious left-wing extremists in Germany,” officials said “the website had referred to police officers as ‘pigs’ and ‘murderers,’ and had featured instructions for creating Molotov cocktails.” Though the site was ordered to shut down under laws banning illegal associations rather than “hate speech” laws, the principle is the same, part of a general German trend in which “the authorities have taken action against hate speech and incitements to violence.”
The shutting of this left-wing site is part of a long tradition in Germany where any ideas deemed threatening to the prevailing order can be banned. In the 1950s, a European court upheld the order of the German government to dissolve and bar the Communist Party, and to seize all its assets, on the grounds that it opposed the principles on which the German government was based.
EVEN IF “hate speech” laws were magically applied by authorities exactly as advocates would wish — whereby only the ideas one hates would be suppressed and punished while the ideas one loves would be allowed to flourish — there would still be very good reasons to oppose such laws. I wrote at length about those reasons several years ago at The Guardian and again last week, and ACLU Legal Director David Cole wrote this week in the New York Review of Books about why the ACLU defends all speech, even the most hateful kind.
In particular, the assumption that censorship will weaken hateful groups and make them go away is completely backward. Nothing strengthens hate groups more than censoring them, as it turns them into free speech martyrs, feeds their sense of grievance, and forces them to seek out more destructive means of activism.
When I represented the free speech rights of such groups as a lawyer, they loved nothing more than when censorship attempts were directed at them, because they knew that nothing would more effectively strengthen their cause. Conversely, as the aftermath of Charlottesville has proved, nothing exposes the evil of such groups, and thus weakens them, like letting them show their true nature.
Ironically, those advocating that neo-Nazis and other hateful groups be forcibly censored are doing more to empower them than almost anything else could. As Cole wrote: “When white supremacists called a rally the following week in Boston, they mustered only a handful of supporters. They were vastly outnumbered by tens of thousands of counter-protesters who peacefully marched through the streets to condemn white supremacy, racism, and hate. Boston proved yet again that the most powerful response to speech that we hate is not suppression but more speech.”
But the more important point is that the ideal application of censorship that advocates envision isn’t how such laws are applied. And it never will be. If you empower state authorities to decide which ideas are permitted and which are not — to assess which ideas contain enough “hatred” to justify banning — it is not likely but inevitable that those laws will ultimately be used to outlaw the ideas you like. As Cole put it, “It is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.”
As The Atlantic’s Conor Friedersdorf recently explained, there is a grave irony at the heart of these newfound liberal desires for “hate speech” censorship laws: The people who would implement and interpret them are those in power, people like Donald Trump, Jeff Sessions, GOP governors and legislators, and their litany of right-wing judges. It takes little imagination to see how such laws would be applied, and against whom. Indeed, the U.S. history of allowing such restrictions is that they have been used against exactly the groups that censorship advocates think they are protecting. As Cole wrote:
Our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent. A. Mitchell Palmer, J. Edgar Hoover, and Joseph McCarthy all used the advocacy of violence as a justification to punish people who associated with Communists, socialists, or civil rights groups.
Indeed, the ACLU was borne out of an attempt by former President Woodrow Wilson to criminalize dissent from his policy of involving the U.S. in World War I. It then spent decades fighting censorship efforts aimed at communists, socialists, civil rights groups, and LGBT activists. When you empower society to outlaw ideas it hates most, that is who is most vulnerable. Civil liberties lawyers were successful in defending those groups only by upholding the principle that state censorship of political viewpoints is always impermissible.
But to see what the actual rather than the hoped-for effects of hate speech laws are, no speculation is necessary, nor does one need to dig through U.S. history in the 20th century. Just look at how such laws in Europe are now being applied, and against whom. Who could possibly look at that and view it as desirable?
Top photo: As part of the national week organized by the group “Just and Sustainable Peace between Israelis and Palestinians.” More than 150 people gathered in Lyon, on the banks of Rhones, to show their solidarity with the Palestinian people, for the defense of freedoms, the right to boycott Israeli products, the end of the occupation, and the requirement of sanctions, as long as Israel is violating international law.
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