In Europe, Hate Speech Laws Are Often Used To Suppress And Punish Left-Wing
Viewpoints
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By Glenn Greenwald, www.theintercept.com
August 31st, 2017
Above Photo: From theintercept.com
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 essay
defending 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.'"
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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."
blm-1504019061-1000x444In 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."
azhar-1504016139-1000x643Writing 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."
germansite-1504018364-540x367The 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?
