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If You Want To Combat Hate, Don’t Outlaw Hate Speech—Counter It With Better Ideas

Europe’s approach to banning expression lets people feel good but does nothing to eradicate racism

James Kirchick
February 12, 2014
Supporters of the far-right NPD political party wave flags as they demonstrate in the Schoeneweide district of Berlin, Germany, on May 1, 2013. (Carsten Koall)
Supporters of the far-right NPD political party wave flags as they demonstrate in the Schoeneweide district of Berlin, Germany, on May 1, 2013. (Carsten Koall)

Last December, a group of about 20 militant left-wing activists dressed as Santa Claus crashed a lecture on civil law at the Ruhr University in Bochum, Germany. They were there to target Michael Brück, a 23-year-old member of a recently banned extremist organization and current deputy chairman of the far right wing party Die Rechte, or The Right. “Your classmate is a neo-Nazi!” screamed the protesters, members of a local “Antifa”—anti-fascist—affiliate. A violent scuffle ensued in which the professor leading the class was left with a bloody nose.

The Bochum incident followed a similar confrontation a month earlier at the University of Hanover, in which a student member of the right-wing National Democratic Party, which has seats in two of Germany’s 16 provincial parliaments, was targeted with leaflets stating, “The whole university hates you.” In both instances, the admitted goals of the left-wing activists included not just the public condemnation of their right-wing classmates, but embarrassing university administrations into expelling them for their political beliefs and activities—an objective that neatly coincides with the latest attempt by Germany’s regional governments to ban the NPD for being a threat to the German Constitution and civic order.

In Europe hate speech, Holocaust denial, and other forms of racially or religiously discriminatory expression have been strictly regulated since the end of WWII, when governments believed they had to do everything in their power to prevent the recurrence of fascism—and, in the absence of blanket protections like those offered by the Bill of Rights, had no qualms about starting with curbing speech. Viewed against its liberal democratic counterparts around the world, the United States is unique in its protection of free expression; there is nothing anywhere else quite like the First Amendment, which in its brevity and simple language gives everyone wide berth to speak their mind, no matter how distasteful their views.

Yet this distinctly American conception of free speech has recently come under critical assault by thinkers alarmed by the protection the First Amendment gives to hate speech. “No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon,” wrote Thane Rosenbaum, a Fordham law professor, in a recent Daily Beast essay titled “Should Neo-Nazis Be Allowed Free Speech?” The answer was basically no. Pointing to France, where the comedian Dieudonné M’bala M’bala—inventor of the quenelle—was recently prohibited from staging performances in two cities, and Israel, where debate is ongoing about banning the word “Nazi” for noneducational purposes, Rosenbaum suggested that Americans should also rethink their cherished nostrums regarding free speech. “In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma,” Rosenbaum writes.

Yet the United States, a country that rivals any other in cultural diversity and that has had its own fair share of “historical tragedies,” has somehow endured without enforcing the sorts of limitations on speech so popular in Europe. Rosenbaum argues that by failing to treat offensive speech in the same way we do violent assault, we “privilege physical over emotional harm.” But by citing something as nebulous as “emotional pain” as a justification for legal action against unpopular speech, he unleashes a limitless potential for self-proclaimed “victims” of said speech to outlaw whatever it is they decide has “cruelly trampled upon” their “sensitivities.” And there is no evidence that European laws limiting free speech have had their intended salutary effect.

On the contrary, by marking certain speech as politically taboo, the European political establishment has strengthened marginal voices. “Outlawing the NPD will spare German society having to confront right-wing extremism,” Anetta Kahane, an anti-fascist activist, told the German magazine Der Spiegel last year. “You won’t get racism out of people’s heads by banning the NPD. You’ve got to confront their attitudes.” In other words, the best weapon to combat offensive and stupid speech is intelligent, nuanced speech.

Indeed, it is precisely the liberal conception of free speech that Rosenbaum finds so injurious and dangerous—granting equal freedom of speech to all, haters and conciliators alike—that has offered the best remedy for minorities seeking better treatment from the majority culture. The case for banning certain types of speech “has not demonstrated that hate speech silences minorities, rather than mobilizing or energizing them; it has not shown that restrictions ameliorate hate or silence haters, rather than intensifying hate and publicizing haters,” writes Jonathan Rauch in the updated afterword to his seminal, and recently reissued, 1993 defense of free speech, Kindly Inquisitors: The New Attacks on Free Thought. In refuting the case for hate-speech laws, Rauch points to the perilous condition in which gay people found themselves in the middle of the last century, when their very existence was illegal.

He uses the case of Frank Kameny, an Army astronomer fired from the government in 1957 for his sexual orientation, to demonstrate how gays gradually used the constitutionally ensured rights at their disposal—namely freedom of speech and assembly—to sway public opinion to the point where the majority of Americans now not only believe homosexuality should be accepted, but that gays should have the right to marry, a state of affairs that would have been inconceivable just 20 years ago. Kameny was the first gay person to challenge his firing by the federal government, and though he lost the case, he went on to become the first openly gay person to run for Congress, played a crucial role in getting the American Psychiatric Association to declassify homosexuality as a mental disorder in 1973, eventually lobbied successfully to get the federal prohibition on gay employment lifted, and was honored in 2009 by no less a figure than President Obama.

Kameny’s story, Rauch argues, offers the clearest case for how minorities “are the first to be targeted with vile words and ideas, but we are also the leading beneficiaries of a system which puts up with them.” Imposing restrictions on hate speech against toward minorities is redundant, he goes on, “for by the time a community is ready to punish intolerance legally, it will already be punishing intolerance culturally. At that point, turning haters into courtroom martyrs is unnecessary and often counterproductive.”

But what about when hate speech crosses the line from mere expressions of bigotry into inciting violence? A case that ought to give even the most ardent of free-speech absolutists pause is that of Scott Lively, a hysterical and homophobic pastor from Springfield, Mass., who has traveled the world encouraging countries to “criminalize the public advocacy of homosexuality,” which is precisely what the Russian Duma did last year, in a bill for which Lively takes credit. Several years ago, Lively—the author of The Pink Swastika, a book asserting that Nazism was a homosexual conspiracy—delivered a series of speeches in Uganda, where parliamentarians subsequently proposed a law instituting the death penalty for homosexuality. A Ugandan gay-rights organization is currently suing Lively in U.S. federal court under the Alien Tort Statute, which allows foreigners to bring suit against Americans for human rights violations committed outside the country.

While he acknowledges his support for the criminalization of advocating homosexuality, Lively contends that he never advocated criminalizing homosexuality itself, never mind imposing capital punishment. Moreover, he claims, the case represents an assault on his constitutionally protected right to free speech—speech that included ravings about how gays seek to molest children and undermine society. As tempting as it is to blame Lively for the oppression that has been inflicted upon gays in Uganda, to punish him for merely delivering antigay tirades—“They asked for my opinion, and I gave it,” he told NPR in 2009—blurs the line between constitutionally protected speech and actual acts of violence. It would also let the true culprits—the Ugandan officials who wrote the law—off the hook.

We see the same effect at work in Europe, where Holocaust-denial laws serve as a convenient tool for societies unwilling to take up the hard task of historical retrospection and recrimination. In 2005, the British historian David Irving was arrested in the southern Austrian state of Styria over a speech he had delivered in 1989, for which he eventually pleaded guilty to “trivializing, grossly playing down, and denying the Holocaust.” Throwing the already disgraced, discredited, and marginalized Irving into jail certainly served the purposes of the Austrian government and wider society, which could boast to the world that it would not tolerate any form of neo-Nazism. Yet only six years earlier, Austrians voted the far right Freedom Party into a coalition government, a move that led the European Union into taking the unprecedented step of imposing sanctions on one of its own members. The Freedom Party was and remains infamous for its xenophobia, anti-Semitism, and whitewashing Austrian complicity in the Holocaust; its late leader Jörg Haider had a habit of either downplaying the crimes of, or outright praising, Nazis.

In other words, banning Holocaust denial and throwing those who espouse it into jail hasn’t diminished the political inheritors of Austrian fascism. In fact, prohibiting public expression of neo-Nazism comfortably coexists with widespread nostalgia for Nazism. To this day, the Freedom Party remains a force to contend with, regularly earning over 20 percent of the vote in nationwide elections; it is currently the third-largest party in the country. A poll conducted last year by the Viennese newspaper Der Standard found that a majority of Austrians—54 percent—believe that the Nazis themselves would win an election were they allowed to compete today. Lest one think that this result indicated a general fear among Austrians about the fascistic inclinations of their countrymen rather than actual, widespread fascistic inclinations among the populace, a full 42 percent of Austrians believe life “wasn’t all bad under the Nazis.”

Throwing someone in jail for stating false information is part and parcel of an Austrian culture of silence. Rather than interrogate their own historical complicity with the Holocaust and work to unwind the myths they have spun about themselves, the greatest of which is that they were Hitler’s first victims, Austrians would rather lock up the most extreme and easily refutable manifestation of neo-Nazi sentiment, an action that effectively grants the rest of their polity a clean bill of health.

To witness the perverse consequences of the European approach to hate speech, and the deleterious effects mimicking them in the United States could have, we need only return to the German Antifa brigades and the martyrs they made out of two misguided twenty-somethings. Following her public shaming, Hanover University student and National Democratic Party activist Christina Krieger emerged to say that her ordeal was “the best advertisement for the party.” And after the screaming Santa Clauses descended upon Michael Brück in Bochum, most students expressing an opinion on the university’s Facebook page directed their ire not at the right-wing extremist in their midst—but rather at the Antifa activists calling for him to be expelled.


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James Kirchick, a visiting fellow at the Brookings Institution, is a columnist at Tablet magazine and the author of The End of Europe: Dictators, Demagogues and the Coming Dark Age. He is writing a history of gay Washington, D.C. His Twitter feed is @jkirchick.

James Kirchick is a Tablet columnist and the author of Secret City: The Hidden History of Gay Washington (Henry Holt, 2022). He tweets @jkirchick.

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