2.

AMERICAN OUTLIERS: SPEECH AS ROBUST RIGHT

The First Amendment has become a ridiculously overhyped and manipulated freedom.

NOT WIDELY KNOWN is that other nations around the world, including democracies fashioned from the cradle of the Enlightenment, adopted the teachings of the same worldly philosophers as did the United States—Locke, Rousseau, and Kant—and somehow managed to avoid the free speech madness that is as tightly woven into America’s democracy as are the Stars and Stripes. The United States has an unsurpassably more exuberant appreciation of free speech than other democratic countries. Nations such as Germany, England, Belgium, Brazil, France, Canada, India, Ireland, Israel, Cyprus, Australia, Italy, the Netherlands, New Zealand, Austria, Sweden, Denmark, and Switzerland all have hate speech laws that restrict free speech. Marching neo-Nazis in Austria and Germany—two nations for whom brown shirts and the chanting of “Heil Hitler” is not some quaint trip down memory lane—get marched right to jail for up to three years. The Germans also recognize free speech, but they made an ideological if not humanistic decision that the protection of human rights was a more important defining feature of German citizenship. They did not see a reason why a commitment to free speech necessarily meant an obligation to tolerate hate speech. Brazilians regard the issue similarly and, unlike the circumstances behind the neo-Nazi march in Skokie, Illinois, Brazil is no refuge for Holocaust survivors. Brazilians simply know that Nazis—whether they be old or new—marching in any direction is not good for society. The interest that Germany, Austria, or Brazil has in making such expressive speech or conduct unlawful has less to do with protecting a vulnerable minority (because relatively few Jews actually live in these countries) than it does with safeguarding the overall political climate from a group that is only up to no good.

Just imagine the public sphere as a rain forest: Brazilians see both environments as worthy of protection from different but equally hazardous forms of pollution.

In France, Dieudonné M’bala M’bala, a comedian who popularized an inverted Nazi-style salute and whose comic material often includes the wish fulfillment of sending Jews back to the gas chambers, is routinely banned from performing in his native country and, occasionally, from entering the United Kingdom. He has been convicted of engaging in racial hatred in France repeatedly. He was even sentenced to serve two months in a Belgian prison and pay a $10,000 fine for inciting hatred stemming from racist, homophobic, and anti-Semitic comments made during his act.¹⁸ More recently, he faced seven years in prison for a Facebook posting that mocked the Jews killed in Paris during the Charlie Hebdo terrorism attack and for identifying with and showing sympathy for their murderer.¹⁹ The French, with their own rich liberal traditions and a revolution fought for liberty dating back nearly as far as our own, sleep well at night knowing that such laws are in place preventing Dieudonné from inciting hatred and causing harm to France’s Jews. The deprived free-speech right of the comedian is apparently not central to their consideration of overall liberty. France remains a free society even though an anti-Semitic agitator may feel otherwise. The manner in which he chooses to communicate his hateful message has consequences—even in a society that values free speech.

In explaining why Dieudonné is treated differently from the cartoonists who drew for Charlie Hebdo, Emmanuel Pierrat, a French lawyer who specializes in free speech issues, said, “Freedom of expression stops where it starts to encroach upon the freedom of others.”²⁰

In Germany, in 1994, the Constitutional Court ruled that freedom of speech is not available as a defense to those who propagate the “Auschwitz lie”—the absurd falsehood that the Holocaust never happened. In 1995, a state court in Berlin convicted a neo-Nazi leader who greeted visitors outside of Auschwitz by telling them that the Holocaust was pure fiction.²¹ Germans who wish to promote a false “idea” in contravention of the historical record—that the gas chambers of Auschwitz either never existed or that Germany had nothing to do with them—are not permitted to do so without risking criminal punishment. No one questions Germany as a mainstay of liberal democracy. And its sensitivity to Holocaust memory is now a first principle of its nationhood. And, yet, as a free society, it is comfortable denying the right to free speech for those who wish to introduce such pernicious and harmful falsehoods into the public sphere.

Both of these German cases took place nearly fifteen years after the Skokie decision. German lawmakers and judges were no doubt aware of this inconceivable American free speech case that had no counterpart on the European continent. To a European, Collin v. Smith, the federal court Skokie decision, was not so much a federal case as a freak show. Why in the world would Americans allow neo-Nazis to march in front of Holocaust survivors? What next: Feed Christians to lions? Where is the civic virtue in such bread and circuses? America’s reputation for First Amendment excess precedes itself. And it does not seem to mind its outlier status as a nation where free speech is much more than a mere figure of speech. America takes great pride that anyone and everyone has an absolute right to speak their mind—even if they are out of their mind. And for decent people everywhere, it boggles the mind.

One can imagine that the surreal events in Skokie presented affinities too close for Germany’s comfort. A suburb of Chicago is quite a distance from any city in Germany, but even in 1977, before the digital highway of the Internet, news traveled fast, and this type of news was of the especially rapid sort. Nazis will forever be Germany’s most raw nerve—an Achilles’ heel that covers the entire body. Germans know what comes out of the mouths of Nazis when given the chance to speak freely. Perhaps for this reason, Germany did not respond as if it had anything to learn from America’s often perverse affection for its strict interpretation of the First Amendment. For Germans, the Skokie decision was a legal anathema—a quirk of national naiveté, the innocence of a country dimmed by the good fortune never to have experienced how speech can overthrow a republic.

This is one of the things that European nations understand about free speech that the United States does not. America stands alone among advanced democracies in rejecting hate speech laws on constitutional grounds. Law professor Jeremy Waldron called this “American exceptionalism with a vengeance.”22 What is it about the First Amendment that is not appreciated from afar? The concept of natural rights began in Europe and evolved in the United States with a Jeffersonian, Madisonian, Hamiltonian twist. One obvious novelty was an exaggerated holiness involving free speech. But even that did not manifest itself until after nearly two hundred years of its existence. Free speech absolutists in the United States constantly quote the British writer Evelyn Beatrice Hall, who wrote in her The Friends of Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.” This statement is often misattributed to Voltaire himself. Ironically, however, this clever quote has had no influence on the British and French. Yet, Americans who have never even heard of Voltaire recite a phrase he never said as if it were their very own personal mantra.

All kinds of catchy slogans about free speech are celebrated in the United States and yet hold no sway in other democracies. They are invoked to justify and protect what is sometimes intolerable speech. And they are each composed with the smug moral authority of a people certain that theirs is the correct reading of liberalism. They believe that democratic self-government is simply not possible unless the most odious members of society are given their chance to spew their hatred of others.

Time and again, we hear:

“Good speech will cancel out bad speech.”

“How does one draw the line between good and bad speech?”

“Allowing racists to speak freely brings them out into the open where they can be challenged and defeated.”

“Having to tolerate the free speech of bigots is the price we all pay to live in a free society.”

“Sunlight is the best disinfectant”—a quote from Supreme Court Justice Louis Brandeis in 1914 on how best to fumigate the harm that speech sometimes brings.

How that actually works in practice is not so obvious to a targeted individual situated in the middle of a riot.

British novelist Salman Rushdie stated in 2012 that “bad ideas, like vampires . . . die in the sunlight.” This is an odd thing to say coming from someone who, because the Prophet Muhammad made an appearance in his novel The Satanic Verses, had a fatwa placed on his head by the Iranian cleric Ayatollah Khomeini. Rushdie was driven into social exile for years. No amount of sunlight shielded him from the darkness of Khomeini’s idea that apostates should die a violent death. All kinds of sadistic behavior take place in the plain light of day. ISIS has beheaded hundreds with the sun beaming overhead, the blood flowing, the world watching, and the message clearly and freely communicated.

European lawmakers and jurists are of the view that bad ideas are bad for a reason: They are not really ideas at all. Just because they are spoken, or written out, does not automatically qualify them to be emulated, adopted, debated, or seriously considered. They do not meet the high standards required of ideas found worthy of sharing space in the public sphere. As law professor Eric Posner wrote in response to Rushdie, “Bad ideas never die: They are zombies, not vampires. Bad ideas like fascism, communism, and white supremacy have roamed the countryside of many an open society.”²³

The rest of the free world largely agrees. Even our bordering neighbors have a lower tolerance for speech intended to cause harm. “Canadians do not have a cast-iron stomach for offensive speech,” said Jason Gratl, a lawyer for the British Columbia Civil Liberties Association. “We don’t subscribe to the marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”²⁴ There is a strong global consensus that democracy is not enhanced whenever neo-Nazis, skinheads, and extremist right-wing or terrorist groups are nearby and taking their turn at the microphone. The more recent electoral successes of extreme right-wing parties in Europe is raising a continental cause for alarm.²⁵ These anti-democratic groups are not known to make any contribution to the “marketplace of ideas.” How do you know this to be true? Does anyone think for a moment that a vigorous debate involving the deranged “ideas” of the KKK, neo-Nazis, and practitioners of Islamic terror would result in everyone conceding that they were right all along?

For several decades now, the Western world has been awash in moral relativism—the concept that all cultures, and the morality that guides them, exist relative to one another. None are better or worse. President Obama’s skepticism about American exceptionalism was of a piece with this idea. Cultures are equipped with their own logic. What makes sense to one might offend all norms of another. What one culture does with its women, children, elderly—and their unique rites of passage and rituals—might seem barbaric to another culture, but that does not make it wrong. It is a judgment-free ethos, where the passing of judgment is itself a sign of post-colonial arrogance. Is it female genital circumcision or mutilation? Is the wearing of a burqa a cultural and religious norm, or is it the dehumanizing subjugation of women?

The moral relativist insists that no one is ever in a position to really know.

But being able to judge the conduct of another, fairly and correctly, is the cornerstone of liberal thinking. Evaluating options, weighing values, drawing conclusions, and making assessments is what liberal thinkers are expected to do. A philosophy based on the relativity of cultures undermines our moral duty to make fundamental distinctions between right and wrong.

A type of moral relativism fuels the folly that all ideas start out the same until they run the gamut through the marketplace of ideas. They have no currency at all at their inception, so they cannot be judged. Only through this mythical marketplace can valuations be assigned, where the bad ideas are identified and discarded like rotten fruit. But is that really necessary? Must a notably bad idea be given access to this public market? Can it not be called out for what it is from the very start—a flagrant violation of social and intellectual norms? Should we not be able to unequivocally agree that a white supremacist’s ideas should not be allowed to become mainstream?

The only reason for the existence of extremist hate groups is to foment social unrest, incite violence, and promote disharmony among citizens. The responsibilities of citizenship, the rights and duties it imposes on all members of society, are truly foreign to them. Hateful advocacy is a blanket condemnation of civilizing norms. It is the very opposite of democratic participation. The propagation of hate has no interest in the pursuit of objective truth or the general improvement of society. The aim is to falsify and destroy; it is a disagreement with life itself.

Europeans take full measure of the social cost of harmful speech. And they also account for benefits that accrue to a society from speech. After a balancing of values, these other liberal democracies conclude that there should be no distinction between ordinary physical harms that governments are obligated to punish and prevent, and harms that arise from speech. Injurious speech is deserving of no special exemption. Reckless driving receives none either. Main Street and the public square should be made safe from either of these dangers.

In America, however, when it comes to the First Amendment, we treat every voice as precious; all opinions are equally valuable regardless of what is said or how it is said. It does not have to be this way. We can make choices and determine what is an acceptable public utterance. We do not have to be imprisoned by them. Voicing an opinion need not be a free-for-all. Some make no pretense that their actions and utterances are motivated by the life of the mind. They are not aiming for a civic award; elevating society is not their concern. Their world is visceral and impulsive. The gutter is their preferred domain; the endgame is to bring everyone down to their level. There is simply no moral or legal reason why they should be heard in a public setting. They do not have to be rewarded with a soapbox, unless the soap is being used to wash out their mouths.

It is for this reason that Europeans refuse to sweat the line-drawing and slippery-slope anxieties about restrictions on speech. They recognize that free speech ought to come with limits and that the reasonable regulation of speech is no less a governmental obligation than making sure that food and drugs, the securities markets, and the bridges and roadways are safe for public consumption and use. In parts of the United States where marijuana is still illegal, its recreational use results in a criminal conviction. Meanwhile, burning a cross in front of African-Americans to drive home the point that they are unwelcome in the neighborhood is constitutionally protected. Taking an action, like drug use, that might harm only oneself is against the law. Yet, tormenting a family and destroying their sense of tranquility and social status as citizens triggers no legal sanction. Try explaining this to a European. No wonder other nations are mystified by our misplaced priorities when it comes to free speech.

Within the constellation of natural rights, the freedom to speak freely is, arguably, the most natural right of all. But that does not make it dominant. Other rights and liberties are manifested in personal autonomy, dignity, and tranquility. The dignitary and equal protection rights of citizenship are no less natural to human existence. Privileging the First Amendment rights of the speaker while relegating the target of his unwelcome speech a second-tier citizenship is unjustified. The First Amendment has become a ridiculously overhyped and manipulated freedom. The United States could stand to reconsider whether its outlier devotion to the First Amendment still makes sense and whether it is finally time to take proper measure of the true costs of free speech.