15.
NOT EVERYTHING SHOULD BE OPEN FOR DEBATE
Other democratic nations around the world have a real-time appreciation of the cumulative impact of hateful propaganda and the challenges it presents to keeping the peace in multiethnic, pluralistic societies.
SOME MATTERS ARE simply never open to debate. For instance, humanity is a given; it does not come up for annual review. As a society, we should categorically state that we are not interested in what haters and harm producers have to say.
Our neighbor to the north, Canada, also has freedom of expression built into its Charter of Rights and Freedoms. Canada is democratic in its governance. But they see a higher purpose for free speech. In 1957, its Supreme Court recognized “[t]he right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters whether they be social, economic or political.”140 The rantings of Nazis, however, is not purposeful speech that informs the public on matters of common concern. Speech that merits protection must be positively directed toward the public good. The Canadians are right not to regard speech intended to cause emotional harm to minority groups as protected free speech.
When the Canadian Supreme Court ruled on a case where appellants distributed cards inviting people to dial a phone number and hear a recorded message denigrating Jews, it found the conduct to be deplorable and reaffirmed that “willfully promoting hatred” violated the Canadian Human Rights Act.141 In the United States, the expressive intentions of the speaker—the viewpoint and content of the message—would have been the overriding concern for the Supreme Court. The speaker in the Canadian case wished to express his anti-Semitic views by leaving a recorded message for anyone who chose to dial a phone number. The country with whom we share a border has adopted many of our cultural traits, but we have something to learn from their humanistic impulses. In Canada, speech that does not advance social goals is unprotected under its Charter. Nazis need not apply. In Canada, free speech is a more conditional freedom.
In a stunning passage that speaks directly to why dignity matters, the Court wrote, “A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to the groups to which he or she belongs. The derision, hostility and abuse encouraged by the hate propaganda therefore have a severely negative impact on the individual’s sense of self-worth and acceptance.”142
In yet another case involving the use of telephonic communications to spread group hatred, the Supreme Court of Canada reiterated the serious threat to society that hateful propaganda presents. It wrote in 1990 that hate speech “contributes to disharmonious relations among various cultural and religious groups, as a result of eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.”143
Canadians are far from alone in restricting speech that has as its objective not the transmission of valuable ideas but the discharging of harm to human dignity. Statutory language around the world invokes human dignity as a right no less worthy than free speech. Article 30 of the Polish Constitution guarantees “the inherent and inalienable dignity of the person.” The South African Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected.”144 Israel does not designate a formal right to free speech, yet the Israeli Supreme Court has incorporated free speech into the Human Dignity Clause of its Basic Laws. It reads: “All persons are entitled to protection of their life, body and dignity.”145 In a case that balanced the right to liberty and human dignity, the Israeli Supreme Court explained in 2002 that, “The rights of a person to his dignity, his liberty and his property are not absolute rights. They are relative rights. They may be restricted to uphold the rights of others . . . human rights are not the right of a person on a desert island. They are the rights of a person as a part of society . . . in a democracy.”146
In the aftermath of the Holocaust, the Federal Republic of Germany, more so than any other nation, incorporated dignity as the primary value of human freedom that must be safeguarded by the state. Such a priority makes sense given how much dehumanization figured into the ethos of the Third Reich and how much the reconstituted Germany wished to redeem its moral honor and start anew. Article I of its Basic Law of 1949 subordinated all constitutional rights and values to human dignity, finding that “[t]he dignity of man is inviolable. . . . [It is] the supreme value [that] dominates the whole value system of fundamental rights. . . . Human dignity is thus a constituent part of humanity . . . the essence of the German social order . . . the highest legal value in Germany.”147 Article I imposes an affirmative obligation on the state to “respect and protect human dignity.”148 Article II of the Basic Law guarantees that “[e]very person has the right to the free development of his personality, insofar as he does not injure the rights of others.”149
Dieudonné would not fare better if he headlined a comedy club in Berlin. The German criminal code specifically proscribes the use of intimidating hate speech that violates human dignity. Unlike zealotry around American free speech, German law is not conflicted about “balancing human dignity and freedom of expression,” recognizing that dignity may even deserve more protection since the full exercise of free speech might leave vulnerable minorities exposed to contempt and derision.150
Given America’s unbounded optimism in public discourse and its traumatic memories of King George III—a monarch with a low tolerance for sedition—the disparate treatment of free speech between the two continents becomes clearer. Unlike Europe, where the memories of Nazi Germany are easily recalled, the United States never fully owned up to its racist past, with its lingering remains still very much visible today. Other democratic nations around the world have a real-time appreciation of the cumulative impact of hateful propaganda and the challenges it presents to keeping the peace in multiethnic, pluralistic societies.
Inexplicably, few in the United States seem to be saying the obvious: Given that there was once slavery in this country and a civil war had to be fought in order to end it, surely the Klan cannot be granted a pulpit to antagonize and retraumatize African-Americans. There is something fundamentally indecent about still having to endure racist taunts in a nation that was once defined wholly by its racial divisions. That is what the Germans understand about neo-Nazis—never again can they be allowed to set the terms of public debate; never again should their agenda even be debated. In America, however, there is no sense of shame about allowing racism to take center stage in public life. And there is no consensus on the power of words to wound.