In response to:
Say What You Will? from the September 29, 2016 issue
To the Editors:
David Luban’s measured and thoughtful review of Timothy Garton Ash’s book Free Speech: Ten Principles in a Connected World [NYR, September 29] takes issue with the author’s opposition to so-called hate speech laws, ones that would be plainly unconstitutional in the United States but are the norm throughout democracies elsewhere, including Canada and Western European nations. Luban joins Jeremy Waldron in supporting such legislation on the ground that the aim of such speech is “to reduce the standing of entire groups and assault the human dignity of their members.” That is indeed its aim but the baleful impact of such legislation is to punish speech that, outrageous as it is, is at the core of democratic self-government.
Consider cases commenced throughout Europe under such laws. In Belgium, a member of Parliament and leader of a right-wing political party was convicted in 2009 for distributing leaflets calling for a “Belgians and Europeans First” policy and that said, “Stop the sham integration policy,” “Send non-European job-seekers home,” and “Stand up against the Islamification of Belgium.” He was convicted of incitement to racial discrimination, disqualified from holding office for ten years, and sentenced to community service. His conviction was upheld by the European Court of Human Rights on the ground that such literature “sought to make fun of the immigrants,” leading to hatred of foreigners, particularly by “less knowledgeable members of the public.” In England, an individual was tried and convicted for displaying a poster that showed the World Trade Center ablaze with the caption “Islam out of Britain—Protect the British People.” The European Court of Human Rights permitted that conviction, as well, to stand, concluding that the poster constituted a “public expression of attack on all Muslims in the United Kingdom.”
Americans will recognize the ugly language. Donald Trump’s denunciations of Mexicans (“They’re bringing drugs, they’re bringing crime, they’re rapists”) and his proposal to ban all Muslims from entering the United States for an unspecified time period are not far afield. Those statements were both incendiary and racist. But the notion of applying criminal sanctions in response to them is deeply disquieting. So is the paternalistic tone of the rulings of the European Court on Human Rights. All the statements at issue were political in nature. All called for changes in national policy. Even if there were no First Amendment barrier to the enactment of laws criminalizing such speech, doing so would seriously threaten the democratic nature of this nation, just as they have in the nations in which such speech is deemed criminal.
Cahill Gordon & Reindel LLP
New York, New York
David Luban replies:
Floyd Abrams raises the important question of which poses the greater threat to democracy, hate speech laws or hate speech itself. There is no denying that the laws restrict political speech. But Abrams exaggerates when he places the right to incite group hatred at “the core of democratic self-government.” If it were, Canada, New Zealand, and the nations of Western Europe with hate speech laws must all be democratic failures. Abrams seems to believe that about European states—a conclusion their voters, who often inflict stinging defeats on their governments, would find preposterous. These vigorous democracies have judged that unfettered hate speech, which aims to drive minority groups to the margins of society, poses the greater threat to self-government. Hate speech does so by making minorities fearful about participating in civic life. It does so as well by mainstreaming hate, in a vicious spiral that breeds more hate and empowers antidemocratic race radicals.
To take an important example, Germany is a democracy with a broad hate speech law. It prohibits not only racist incitements, but also “assaults [on] the human dignity of others” by “maliciously maligning” their groups. Germany, more than most countries, learned firsthand the bitter result to which unrelenting hate speech can lead. If the Germans have concluded that banning hate speech is a necessary safeguard to their democracy, it seems patronizing to tell them we know better. As late as 1952, our own Supreme Court upheld an Illinois hate speech law, without any hint of peril to democratic self-government in Illinois. Abrams is right that political debate is essential to self-government. But it hardly follows that hate speech is central to political debate, any more than direct incitements to imminent racial violence—which our First Amendment has never protected—are central to political debate.