Magazine | February 23, 2015, Issue

Sorry, Charlie

In Europe and elsewhere, free speech is often illegal

Just a few short days elapsed between the march for Charlie Hebdo and the beginning of the crackdown.

On January 11, leaders from Europe and beyond took to the streets of Paris to show their support for freedom of speech and to announce defiantly that they would not be cowed. François Hollande, France’s beleaguered president, expressed his determination to fight for his country’s “principles and values, in particular freedom of expression.” Standing by his side, the British prime minister, David Cameron, affirmed his belief in a “free press, in freedom of expression, in the right of people to write and say what they believe.” Even Mahmoud Abbas, president of the Palestinian Authority, a man who has routinely imprisoned journalists for writing things of which he disapproved, got in on the act.

And yet, just a few days later, the promises turned to ash. Since the attacks, a staggering 54 Frenchmen have been arrested for speaking — among them a controversial comedian who said he sympathized with the man who shot up a Jewish supermarket; a twentysomething who shouted on the street, “I don’t like Charlie, they were right to do that”; and an eight-year-old boy from Nice who proposed aloud that “the journalists got what they deserved.” If all of France is now “Charlie” — with all that that entails — who, one wonders, are they?

Watching from afar, American journalists seemed to be shocked by the volte-face. How can this be happening, the critics asked, in a country that so recently stood up for free expression? How could the French have spilled all those tears in the name of liberté, only to turn around and repress the first four dozen or so eccentrics who stepped out of line? Are they hypocrites?

It is customary to hear critics of American exceptionalism make the complaint that the United States “is the only civilized country in the world in which . . .” Often, they are correct. But to be different is not necessarily to be worse — especially where individual rights are involved. Compared with those of every other country on earth — indeed, every other country that has ever existed — the free-speech protections that we enjoy in the United States are utterly remarkable. Here, neo-Nazis may march provocatively through Jewish areas and expect police protection as they go. Here, seething militia members may suggest verbally that the time has come for a revolution. Here, black nationalists may condemn the entire white race and propose that things might be better if it were exterminated. There are a few limits, yes — incitement to imminent lawlessness is one; conspiracy to criminality is another — but, unlike any other people, Americans are generally free to shout, rant, offend, berate, castigate, revile, scorch, scold, and censure one another to their hearts’ content. If you don’t like what someone is saying to you in the United States, you turn off the television or scribble a note to the editor of the Times. In France? You report him to the gendarmerie.

Do Americans comprehend how lucky and how unique they are to enjoy such freedom? In my experience, they do not. Rather, Americans seem to believe reflexively that all Westerners are at liberty to speak as they wish, and that stories that suggest otherwise are either exaggerated or anomalous. Such nescience, I’d venture, leaves them rather vulnerable to usurpation, for it is difficult to protect one’s liberties when one does not realize they are under attack. In Britain, during the last ten years, citizens have been arrested or interrogated for, among other things: reading the Bible aloud on the street; tweeting rudely at professional soccer players; singing “Kung Fu Fighting” in the presence of a Chinese tourist; suggesting to a police officer that his horse might be “gay”; joking on Facebook about the death of Nelson Mandela; placing atheist literature in an airport chapel; and saying the word “woof” to a Labrador. Moreover, “around 20,000 people,” the Independent’s James Bloodworth noted in January, “have been investigated in the past three years for comments made online.” If current trends continue, such numbers will only increase. At present, investigations of this sort would be unthinkable in the United States. In Britain, France, Germany, Italy, Canada, Australia, and New Zealand, by contrast, they are quotidian.

Worse still, the citizens of those countries accept their fate with alacrity. Out has gone the Enlightenment fervor that provoked cries of “liberty or death”; in has come an ugly cognitive dissonance that permits its sufferers simultaneously to believe that they are free to speak as they wish and to contend that it is only civilized to subject the words of the outspoken to the legally enforced judgment of the mob. In consequence, it is not uncommon in Europe to see politicians explaining with a straight face that they believe in “free speech, but . . . ,” or to witness self-professed “human rights” campaigners arguing openly for the offensive to be thrown in prison. Surprised to see President Hollande delivering an ostensibly full-throated defense of free expression and then presiding blithely over a crackdown on free expression? Don’t be. He doesn’t grasp the absurdity.

#page#For Americans who are accustomed to the First Amendment’s black-and-white strictures, it must be tempting to attribute this paradox to good old-fashioned dishonesty. But that is not quite right. Rather, the contradiction is the unlovely product of a modern misunderstanding of what a right is in a genuinely liberal nation. Historically, Anglo-American rights have been “negative” in nature — that is, they have served as guarantees that the state will stay out of a given area, not that it will interfere. The American right to privacy, for example, is an assurance that the government will stay out of one’s home, and not that the state will provide all citizens with locks for their doors and safes for their personal effects. After a shameful blip during the Wilson administration, freedom of speech has followed the same jurisprudential path. It is not the role of the state, we might say, to distinguish between Hitler and Shakespeare.

Outside of America, however, wannabe censors have managed to upend this notion, and to transform freedom of expression into a partially “positive” right. Governments must prohibit “hateful” or “unhelpful” speech, the argument goes, because it might hurt minorities and upset the weak, and thereby prevent those on the margins from participating fully in society. Expecting everybody to be able to compete within the marketplace of ideas, advocates of speech restrictions add, is naïve and anachronistic. If the best outcome is to be achieved, they conclude, the state must not remain indifferent but must instead monitor the national conversation and ensure that everyone is looked after. Anything less, it is claimed, is inconsistent with “human rights.”

A post from a writer named Tanya Cohen, offered up in January on the website Thought Catalog, explains well the censors’ thought process. “Like any sensible person,” the author writes,  “I am a strong believer in the unalienable right to freedom of speech and I understand that defending freedom of speech is the most important when it’s speech that many people do not want to hear (like, for example, pro-LGBT speech in Russia).” “Censorship in all of its forms,” she adds, “is something that must always be fiercely opposed.”

Then comes the rub:

But we must never confuse hate speech with freedom of speech. Speech that offends, insults, demeans, threatens, disrespects, incites hatred or violence, and/or violates basic human rights and freedoms has absolutely no place in even the freest society. In fact, it has no place in any free society, as bigotry is fundamentally anti-freedom by its very nature.

Rather, Cohen concludes:

Hate speech is not merely speech, but is, in fact, a form of violence and the international community has established hate speech to be a form of violence many times. Hate speech doesn’t merely CAUSE violence. Hate speech IS violence.

I am not entirely convinced that Cohen’s piece isn’t exquisitely subtle satire. Either way, though, the ideas contained within it are internationally popular. Among those who have signed on to the conceit are the United Nations, the European Union, Amnesty International, and, in one form or another, pretty much every government in the world other than that of the United States. By all accounts, some on the American left are tempted to join them. A poll from October of last year revealed that 51 percent of self-professed Democrats believe that “hate speech” legislation is desirable, while only 21 percent disagree. (25 percent of Republicans agree.) Meanwhile, on college campuses across the country, administrators continue to institute their own private “speech codes” and, in many cases, to mutter bitterly about America’s unique distaste for codified legal restrictions.

On occasion, this tendency can be downright farcical. In December of last year, the head of the journalism program at the University of Iowa reacted angrily to a controversial piece of artwork that had been installed on campus. “If it was up to me, and me alone,” he confessed to the Daily Iowan, “I would follow the lead of every European nation and ban this type of speech.” Thus did the university’s school of communications attempt to snuff out communication.

Before despotism can take hold, Thucydides observed, language must be corrupted. Words must “change their ordinary meaning,” and well-established concepts must yield to the new meanings that are “now given them.” At present, “free speech” means just that in America: no “if”s, no “but”s, no cynical attempts to melt our definitions into the shape of the censors’ pen. Those who wish the United States to remain a virtuous outlier must look abroad, and they must weep. And then, thanking the rest of the world for the lesson, they must resolve to remain different.

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