14.
EUROPE’S FOCUS ON PRIVACY AND DIGNITY WITHOUT SACRIFICING SPEECH
All sorts of protections exist to safeguard human dignity—even in societies that also value free speech. It is just that these nations do not overvalue free speech; they do not allow it to become a superseding right.
AS COMPARED WITH Old World European values, where the private realm is sacred and the public face is something that still belongs to the individual, Americans show little regard for private lives and public dignity. Monica Lewinsky would absolutely have had a different experience in the public eye if she had interned for a French president. Moreover, an American candidate for president who found himself accused of a crime in France would never have been treated to a “perp walk” with all the fanfare that escorted Dominique Strauss-Kahn off a plane at JFK Airport on his way to an arraignment in a Manhattan courtroom. One of the reasons why the French were so appalled when they watched the spectacle of Strauss-Kahn—who at the time was the head of the International Monetary Fund and a prohibitive favorite to succeed as France’s next president—handcuffed and removed from his first-class seat with photographers capturing every moment of his indignity is that such photo-ops are strictly forbidden in France. French law does not permit shame visited upon a potentially innocent person.
But what of freedom of the press and the right of the public to know about events as they unfold? Well, the French value privacy and personal dignity far more than the desire for immediate updates on the news of the day. News can wait; dignity cannot. The French are aware of the intrusions on privacy and invasion of personhood that our First Amendment allows. And they reject it. The European Union even has a “right to be forgotten,” which permits individuals to file a legal action to remove embarrassing information that appears about them on the Internet.124 In America, however, to make a spectacle out of someone else’s indignity, especially if it is that of a famous person, is must-see TV.
Americans have priorities other than dignity. For instance, they place great value on the sanctity of private dwellings, which explains why warrantless government searches and seizures, eavesdropping, and home surveillance evokes such strong feelings of Fourth Amendment violation. It also explains why many American states have laws known as the Castle Doctrine, where men and women are truly the kings and queens of their castles. A homeowner is not required to retreat if threatened or attacked in one’s own home. There is no legal duty to avoid a violent encounter during a home invasion. Indeed, in such cases, the homeowner is permitted to stand his or her ground and can even use deadly force for self-protection. The same allowance is not granted outside of one’s home, however. On the street, most states place the burden on the victim to retreat.
As for Europeans, even though castles are far more common on their continent, they do not feel as entitled, nor are they legally permitted, to protect their homes with the same levels of vigilance. The better course of self-defense is to simply flee, and Europeans do not feel less chivalrous in doing so. Where they are far more sensitive—indignant, in fact—is over attempts by the press or private citizens to bring indignity to their public face.
To Europeans, dignity is their castle.
Europeans demand, and are granted, more control in protecting their public image. Sovereignty over the home is less important than sovereignty over the self. Americans, by contrast, seem to accept that the general public has claims on the private lives of their fellow citizens, especially the more famous ones. TV shows and tabloids exist for this very purpose—to track the movements and spread the gossip about the rich and famous. Venturing out into society exposes Americans to the elements, and to public scrutiny and ridicule.125
Europeans, generally, are not as fearful or skeptical of government involvement in their lives. Distrust of the government is America’s obsession. “Don’t Tread on Me” is a revolutionary slogan from Colonial times. Switching from a monarch to a president did not make Americans less cynical. The Bill of Rights, as discussed earlier, is a catalog of negative rights, drafted with a greater interest in placing checks on governmental overreach than in granting positive liberties to the people. Europeans are fixated on dignitary rights and are more than happy to empower the government to protect these rights with every means available.
All sorts of protections exist to safeguard human dignity—even in societies that also value free speech. It is just that these nations do not overvalue free speech; they do not allow it to become a superseding right. Rather, they see speech as yet another aspect of human dignity: One has a right to speak because a dignified person should possess such a liberty, but not if it means bringing shame and indignity to another human being. An attack on a person’s dignity is tantamount to a breach of their peace and an invasion of their personal space—a far more vital plot of real estate than mere tangible property. In a society that regards protection of human dignity to be of no less importance than safeguarding the human body, such violations of personal honor undermine a citizen’s right to personal security.
For instance, employees in Europe are protected under the law from being addressed disrespectfully, degraded, or even assigned humiliating tasks. In France, in a civil suit, employees prevailed over their employer who had required them to present a receipt proving that they had purchased the merchandise they were taking home with them. The court ruled that the employer’s conduct exposed them to unnecessary indignity.126 Anyone who has ever seen Martin’s Scorsese’s The Wolf of Wall Street will remember the disgraceful depiction of Wall Street “boiler-room” excesses where drunken stockbrokers tossed dwarves at targets as if they were mere darts. In France, such a game, even if played by a willing dwarf, is unlawful because it is an offense to the dignity of all dwarves, and it is undignified for a community to allow such a spectacle to even take place.127
Similarly, back in 2009, French president Nicolas Sarkozy was at the center of what in America would have been a politically incorrect scandal, in championing a ban against the wearing of the burka in French society. Two years later, such a law actually went into effect when the French Parliament passed such a measure, but its moral force had less to do with feminist philosophy than it did with general notions of human dignity. Some regarded the law as overly paternalistic, if not outright Islamophobic. The fact that some Muslim women may actually wish to be fully veiled in public, and depriving them of that right violated their religious liberty, was unconvincing to the French president. In his view, having their faces covered in public diminished their dignity regardless of their religious convictions. As an open society, France expected its citizens to be open to the liberty it affords and the dignity it demands. Addressing himself directly to Muslims, he said, “France was an old nation united around a certain idea of personal dignity, particularly women’s dignity, and of life together. It’s the fruit of centuries of efforts.”128
While the law was provocative, it made sense to most citizens of France who, like the United States, fought a revolution to bring the values of the Enlightenment to the people. In France, religious freedom is not more important than human dignity. Neither is freedom of expression. A religion cannot cancel the dignitary rights of even its own adherents. And freedom of speech does not extend so heedlessly that it can cause an assault on dignity.
This is a familiar concept in other Western democracies, where free speech is equally guaranteed but not when it interferes with human dignity. Speakers, no matter what they have to say, no matter how important their purported ideas may be, are not entitled to quash the dignitary rights of others. Even the United Nations includes human dignity in many of its declarations and conventions. Indeed, its Universal Declaration of Human Rights is a valentine to human dignity, with the word appearing in five different provisions, each with a resounding commitment to dignity as a claim of right. The Universal Declaration of Human Rights begins with recognizing “the inherent dignity and . . . the equal and inalienable rights of all members of the human family.” It declares that “[a]ll human beings are born free and equal in dignity and rights.” Its preamble “reaffirm(s) . . . the dignity and worth of the human person.”129 Other international agreements follow the same standard and include the language of dignity. The Preamble to the UN’s International Covenant on Civil and Political Rights guarantees that all human beings have “equal and inalienable rights derived from the inherent dignity of the human person.”130
To Americans living in a dignity-phobic nation, this is a much harder sell. We have not exactly mastered the language of dignity even though the feelings of indignity are widely felt. In Europe, dignity is akin to mother’s milk; in the United States, dignity is not even an acquired taste. What is it about these other democracies that recognize free speech as a fundamental human right but not at the expense of human dignity? What do they understand about the human condition that the United States somehow misses? Other practitioners of democratic self-government, some not from Europe, see no contradiction in guaranteeing free speech while criminalizing conduct that incites violence and causes harm to human dignity. Austria, Australia, Belgium, Brazil, Canada, Cyprus, Denmark, New Zealand, England, France, Germany, India, Ireland, Israel, Italy, Sweden, and Switzerland all restrict hate speech, and do so for reasons that start with the protection of human dignity. A recent decision of the Australian appellate court imposed an obligation on democratic society to safeguard political pluralism by prohibiting insulting, humiliating, or intimidating statements that might cause emotional harm.131
Some nations go ever further by inserting a right to dignity into their founding documents. Namibia, Russia, Switzerland, South Africa, Ethiopia, Colombia, Poland, Hungary, Israel, and Germany include dignity as a constitutional right. Of the forty-five European states, thirty-two mention human dignity expressly in their Constitutions. Of the remaining thirteen, all are signatories to the European Convention for the Protection of Human Rights and Fundamental Freedom, in which human dignity is referred to as a constitutional value.132
There is nothing intrinsically wrong with one democratic nation going rogue on one specific value that other nations regard as sacrosanct. America is on a different continent, after all, although Canada, our continental neighbor, follows the dignitary lead of other democracies. Perhaps American exceptionalism entails a hardened spirit that has no need for any dignity reinforcement. The United States does not subscribe to the same international standards of civility that are fundamental to the self-identification of citizenship in other Western societies. In the end, that should not matter. The United States is not better off for rejecting the prevailing norms of dignity practiced by other nations. When harm comes to the dignity of individuals, damage done to pluralism is not far off. Criminalizing hate speech is a statement by a society that dignity is essential to citizenship. Law professor Martha Nussbaum has observed that these other nations regulate hate speech primarily to “secure for all citizens the prerequisites of a life worthy of human dignity.”133
France is a good example. It guarantees protection for both free speech and artistic expression under its Declaration of the Rights of Man and of the Citizen, declaring that the “free communication of ideas and opinions to be one of the most precious of the rights of man.”134 It is no coincidence that France refers to rights as being owed to humankind as a whole and not just to individual citizens—a distinction that is more than semantics. It is a reminder that the purpose behind democratic liberty is to empower citizens with not just the passive receipt of rights. Individual citizens are also contracting parties with the state. They can make claims on that contract, and they have duties to perform under it, too.
Remember the earlier reference to the shock comedian Dieudonné M’bala M’bala and his many legal troubles? A French attorney in media rights, Mathieu Davy, explained why Dieudonné runs afoul of the law so frequently: “[T]here are clear limits in our legal system. I have the right to criticize an idea, a concept or a religion. I have the right to criticize the powers in my country. But I don’t have the right to attack people and to incite hate.”135
France recognizes the right but also prevents the abuse of freedom of expression. It sees no conflict regulating speech that detracts from democratic life. In fact, to address any confusion about the cultural and legal differences in how speech is treated in France, the government published an English language guide in 2015, which stated clearly that speech is one of France’s highest values, “But this freedom has limits. . . . Racism, anti-Semitism, racial hatred and justification for terrorism are not opinions. They are offenses.”136
As a nation, France has come to some collective understanding that protecting its liberal society, comprised of a multiethnic population, is more important than any truth that might arise from hostile, hateful speech. And it does not see why a speaker’s right to freedom of expression, or the liberties taken by an artist, for that matter, should have more social or political value than another’s right to dignity. If Dieudonné has something meaningful to contribute to the public discourse, he must say it in a manner that respects the pluralistic makeup of France. But whatever he may have to say as a citizen of France, he cannot blatantly degrade the dignity of others because doing so would violate their own rights of citizenship. Articles 10 and 11 of France’s Declaration of Human and Civic Rights guarantees the freedom of holding and communicating one’s opinion, but not if it “trouble[s] public order.” The government always reserves the ability to regulate speech when the freedom is abused.137
Essentially, the French do not believe that it is too much to ask Dieudonné to refrain from making crude concentration camp and gas chamber jokes as an attack on French Jewry. The law he continues to violate is pretty straightforward. In France, “[c]rimes against humanity [are] defined as incitement to discrimination, hatred and violence.”138 That is how seriously the French judicial system takes Dieudonné’s comic act—seeing in it not humor but as “crimes against humanity”—an indictment first made at the Nuremberg Trials, which, it must be remembered, also had to do with concentration camps and gas chambers. Moreover, under French law, the spread of false information is itself a crime. In addition to his assault on the humanity of Jews, his denial of the Holocaust demands punishment, too. For France, where the Holocaust also took place, it is imperative to defend objective truth from the purveyors of lies.
The United States sees it quite differently. In America, Holocaust denial is just another contentious “idea” that deserves an equal opportunity to compete in the marketplace of ideas. Serious-minded people are confident that there will be no takers for such mindless trash. But that requires an abundance of faith in discerning consumers, and we know that Holocaust denial is a trope for many in the alt-right community. One never knows what people can be led to believe—or desperately and fumingly want to believe.
A school principal in Boca Raton, Florida, in 2019, told a parent that the school would not be teaching the Holocaust because he was not in a position to confirm that it was “an actual, historical event.”139 Today, we hear from some in government that the press is the “enemy of the people.” That “all Muslims are terrorists.” That “immigrants are rapists.” Tomorrow, who knows what will be unleashed at campaign rallies. The French are far more realistic about what the Parisian street would be willing to believe if made readily available and treated with the legitimacy of objective truth. Defending Holocaust denial is poisonous to the social fabric and collective goodwill of pluralistic societies. And some people might actually believe it—simply because it received a public airing.
Besides, what idea is being presented here that has a moral and objective claim to be reasonably and fairly rebutted? Must Holocaust survivors be required to produce evidence of their human existence and political legitimacy? The question itself is grotesque and inhumane; it is nothing but a denial of humanity itself. If the humanity of Holocaust survivors is being denied, then what does it mean to be a citizen in good standing?
Clearly this cannot be what the Founders had in mind for our first, or any other, amendment. The state’s obligation under our Constitution, as embodied in the Fifth and Fourteenth Amendments, is to provide equality of access in the democratic process. Those rights are not conditional; they do not hinge on the free speech of others. Allowing citizens to deny the worth of fellow human beings gives them the power to set the terms of civic engagement.
Would we deny the Middle Passage or the scourge of slavery in the southern states? Is the Emancipation Proclamation still up for debate? Yet, being given the right under the First Amendment to burn a cross is tantamount to taunting African-Americans to step outside and debate those who insist that their race is illegitimate. It is even worse than that. The KKK is not seeking a rebuttal. They wish not for a debate, just the liberty to openly hate. That allows them to declare victory without having to hear from the other side.