The Danger of Losing American Free Speech

The subversion of freedom in the name of freedom is part and parcel of the behavior of the Left; seen in the claim that leftist movements are about “liberation,” in the official names of communist countries (i.e., German Democratic Republic, People’s Republic of China, etc.) that assert that they are truly free in contrast to ‘bourgeois democracy,” and in the dismissal of opposition as a form of aggression and violence (“anti-Soviet,” or “imperialist” now replaced by “racist,” “xenophobic,” “anti-gay”). The collapse of communism and the conservative ascendancy of the late twentieth century were surely a staggering and unexpected blow to the Left; it has now recovered with the difference that on the “social issues” (sex, family, and religion) it has taken control of the western establishment (business, academia, entertainment and the courts). Freedom of religion (the most important issue of the Cold War, and a core reason for America’s existence) has suffered badly. But America has been spared, as Europe has not, in another area of leftist subversion, namely, free speech.

But this could change, and a warning of the possibilities of change was offered by Paul Coleman, Deputy Director of the Alliance Defending Freedom International, who discussed the effective censorship of conservative ideas in Europe due to hate speech laws at a presentation at the Heritage Foundation on August 2. In introducing Coleman, Ryan Anderson, Senior Research Fellow at the Heritage Foundation, began by mentioning that under current German law “an insult is a criminal offense, in Poland ‘offending religious feelings’ carries a two year prison sentence, in Cyprus, anyone who promotes ‘feelings of ill will’ may be committing a crime, while in Sweden, anyone who expresses ‘contempt’ toward a group of people may be imprisoned.” Censorship extends to the religious pronouncements of clergymen, the reporting of journalists, and even private conservations. Whether or not accused persons are finally vindicated “the culture they create of intimidation, silence, and censorship is what reigns supreme.”

Coleman discussed “the top five problems” he sees with hate speech laws. These are the difficulty in giving hate speech an objective meaning, the communist origin of the concept, the practical results of hate speech laws, the justifications given for the laws, and the trajectory of the law with respect to the hate speech concept.

First, there is a “definitional problem.” While it may be said that the distinguishing characteristic of hate speech laws is that they make hostility, independent of truth or sincerity, the key factor in deciding the legality of speech, it is nevertheless “very difficult to define what hate speech is.” The European Union says “hate speech is ‘hateful speech.’” “Insult, offense, indignity, hostility” are all terms used. Thus, Coleman claimed, hate speech is “incredibly subjective … If you perceive something to be hate speech, then that perception can in many cases become a reality.” The understanding of illegal hostility is also “fluid.” It “burdens” every citizen “to keep up with the trends.” A typical hate speech law was cited, in which any verbal or non-verbal expression hurting religious feelings is a crime punishable by one year imprisonment.

It may come as a surprise to many people that the history of hate speech laws is that they originated with communist governments. During the twentieth century, communist governments pressed for hate speech provisions in international agreements. The Universal Declaration of Human Rights (1948) is largely free of hate speech doctrine, Coleman noted, a very solid document for liberal democracy, and one which could not be passed by international political bodies today. But subsequent agreements, such as International Covenant on Civil and Political Rights (1976), and the International Convention on the Eradication of All Forms of Racial Discrimination (1969) showed significant communist influence. The irony is that these documents are supposed to be “limiting the power of the state,” but in fact increase it to the extent that they incorporate hate speech doctrine. While the United States signed the treaties, it made reservations against hate speech provisions. In Europe, however, the hate speech provisions were accepted and implemented into law. Article 20 of the ICC (prohibiting “incitement to discrimination, hostility, or violence”) “is the root of many of today’s hate speech laws, and has been accepted by most of the countries around the world, and almost all countries in Europe.” He noted that while “France, the U.K., Germany – all these liberal western democracies – voted against” the hate speech provisions, they nevertheless accepted them and implemented them into binding national law after they were passed. The communist origin of hate speech laws is “hate speech laws’ sordid history.”

Experience has shown hate speech laws have terrible consequences. Coleman pointed to author Jeremy Waldron, who supports hate speech laws. His 2012 book, The Harm in Hate Speech, advocated some form of hate speech laws in the U.S. Coleman said that Waldron’s confidence in advocating hate speech laws as good for the United States is based on the fact that most other countries have hate speech laws, but experience has shown that such laws are bad. The application of hate speech laws in Europe is “an unmitigated disaster … Many of these cases are ridiculous, but a lot of them are highly political … A lot of them are used to silence debate, and to silence those who go against the political or cultural orthodoxy of the day.” Coleman noted the observation of Christian apologist John Lennox: “The global village cannot afford to be divided by claims to absolute truth.” Coleman believes “that captures the heart of where these hate speech laws are going.” The fact that “some people are making claims to absolute truth is deeply disturbing” to globalists. For “hot topics,” debate should be “shut down.” Such “hot topics” include immigration, marriage, gender identity, and “other religions, such as Islam … Eight bishops or cardinals” have been “investigated by the police for hate speech because of comments they’ve made from the pulpit or interviews they’ve given in magazines or newspapers.” Within the last month, the archbishop of Valencia, Spain “was actually taken to court.” Although exonerated, Coleman said that the important thing is the chilling message that was sent around the world. Similarly, British street preachers have been arrested for speaking on marriage and the family. But “criticism of Islam is the topic that is most clamped down on in Europe.” Coleman cited as the “worst case” of hate speech laws the prosecution of Ben and Sharon Vogelenzang in England for hate speech in a private conservation about Islam with a customer in their hotel. This resulted in a whole year of prosecution, and the loss of their business, even though they were finally exonerated, with charges dismissed on the “first morning” in court. “The process is the punishment, in many of these cases.”

There is also no good rationale for hate speech laws. There are two main justifications: 1) Hostile speech leads to physical violence, and 2) hostile speech results in psychological harm. In the first justification, it is held that violence must be stopped before it happens by suppressing speech that will cause violence. Coleman said that this has not proved effective. Weimar Germany had restrictions on hostile speech, he observed, and yet it did not prevent the rise of Nazism. Similarly, Yugoslavia had “even stricter hate speech laws … and they did nothing to stop the violence and the ethnic cleansing that took place.” Also, in contemporary Europe, “there are hate speech laws in every country,” and yet “we are seeing a rise in extremism, we are seeing a rise in violence … The idea that these laws are somehow helping to stem this is not supported” by experience. A “more profound question” is accepting the idea of a likely casual relationship between hostile speech and violence. A presupposition of liberal democracy is that most adults are rational, and not moved to violence by polemics. By contrast, Coleman claimed, to accept the argument that censoring speech will stop physical violence from happening later is “the makings of a police state.” One could, with greater plausibility, claim that prohibiting the consumption of alcohol will stop violence than that censoring hostile speech will do so. Additionally, the suppression of speech causes resentment, as, Coleman maintained, was the case in Weimar Germany. Concerning the claim of subjective injury, Coleman said that “it is impossible to police” subjective feelings. He said that advocates of hate speech laws have moved from a justification of “offended feelings” to “damaged dignity.” But this too is subjective, and to this writer the harm of “damaged dignity” still seems to focus on pain and humiliation. It essentially requires one person to order his or her life based on the injured feelings of another.

A very disturbing aspect of the contemporary legal situation in Europe is the trajectory that they have set for law and society. People see the loss of freedom of religion, speech, and general civil liberties in Europe, but consider it “the price we pay” for peace. (Although it is to be doubted if this sentiment is universally shared). However, Coleman said, “this is not a static area. Things are changing every year. First of all, the scope of the laws is being expanded.” Originally, when hate speech laws were introduced to Europe in the 1960s, they were about race, then about ethnic groups, such as Jews and Sikhs, who are tied to a religion. To be fair, the law was then expanded to cover all religions. Later the laws moved to prohibit speech against sexual orientation, and then against gender identity. “Secondly, the threshold of what’s getting caught by hate speech laws is getting lower and lower.” Instead of truly extreme and hostile statements, now private conversation and casual acts are found in violation of hate speech laws. Thirdly, the means of restricting speech “expands.” In Europe, as everywhere, the criminal law sends a signal to society as to what is right and what is wrong. “Workplace codes … university campus codes” restrict speech in both Europe and America. Most recently, there is a restriction of what can be said on the Internet. Social media organizations like Google and Twitter are “partnering” with the European Union to ban offensive speech. Authorities will “hand pick” speech with which they disagree in enforcing laws and speech codes. Another advance in hate speech laws in Europe is in the U.K., where “extremism disruption orders” would ban legal speech which is nevertheless offensive.

Anderson responded to Coleman’s comments by saying that in an American context, the more immediate threat is antidiscrimination law. A new concept of “dignitary harm” is now being offered as part of this, and could expand to cover more areas. Declining to bake a cake for a homosexual ceremony, using an undesired pronoun when addressing a person, prohibiting entry to a rest room to persons of either natural sex, or declining to pay for contraceptives or abortion inducing drugs are all held as examples of discrimination. Coleman replied that:

“protection of speech, conscience, and associational rights, all of these are part of the same package, and the threats to these different freedoms are all of a similar nature as well. What they are really about is state control, and state sanctioning. So in hate speech laws, the state is seeking to sanction what we can and can’t say. In associational laws the state is hoping to regulate and control and sanction who we can and can’t meet with. And in the antidiscrimination laws, which mostly hinge on the issue of conscience, the state is seeking to control and sanction our consciences, and what we can and can’t decide.” In Europe, there are “major problems with state censorship, state regulation of churches, the state seeking to act as parents in some instances, and state sanctioned conscience.” Conscience, speech, associational rights, and parental rights “all come, I think, as a package.”

Yet in America, free speech is protected as a fundamental right against claims that it is “discriminatory,” whereas the exercise of religion is not. Nevertheless, in the United States, Coleman said, if “the antidiscrimination threat is coming, and I think it most certainly is, then I doubt that it will come alone.” Coleman said that American free speech doctrine, long protected by the Supreme Court, is “not that robust.” Early in the twentieth century, there was a “bad tendency test,” that allowed speech to be banned based on its tendency to cause undesirable things to happen. These restrictions were dispensed with in the course of the twentieth century. Currently, a 1969 decision holds that speech cannot be criminal unless it incites imminent violence. But present legal doctrine in favor of free speech may not “stay static.” Strong judicial activism in the United States threatens free speech, Coleman said. This is an ominous thought, given that a liberal Supreme Court may well result from the coming election.

As this writer noted in connection with the two most recent homosexuality decisions from the Supreme Court, United States vs. Windsor (2013), which voided the Defense of Marriage Act, and Obergefell vs. Hodges (2015) which mandated same-sex marriage, while these decisions attempted tie in to the text of the Constitution by appealing to “liberty” and “equality,” what they really indicate is that the “package” of classical liberalism is being replaced by another “package,” that of leftist ideology, which overrides all the freedoms of the First Amendment – freedom of religion, speech, the press, and assembly (classically broadened to mean “association”). The true basis of these decisions, very clear from their text, was condemnation of traditional morality as being motivated by hate, and oppressive to homosexuals. The “animus” standard (or the “hate standard” to speak in plain language) is really an ominous injection of leftist ideology into constitutional law. If the Fourteenth Amendment guarantees of “liberty” and “equal protection” mandate the animus standard as it was presented in the decisions mandating legal and social acceptance of homosexuality, it is easy to see that it could logically be applied in many other areas; indeed in any area where the Left finds oppression. Is the Personal Responsibility and Work Opportunity Act (i.e., “welfare reform,” passed in 1996) based on hatred of poor people? If so, it is unconstitutional. An especially bad aspect of the animus standard is that it attacks the motivation of voters, whose power of choice in government is the hallmark of a democracy. Democracy should indeed have limits, but limits placed by the reasonable wording of the Constitution, not ideological analysis based in its vague intimations. It’s instructive to note, as has already been mentioned, that communist dictatorships claimed in their names to be thoroughly “democratic,” with society carefully monitored to ensure no oppressive ideas were affecting it anywhere. While in Europe all the components of the subversive package of leftist ideology appear to be in place, in America today, we have a strange mixed package of classical liberalism and ideology, with classical freedoms of religion, and to some extent association, overridden by ideology, but classical liberal free speech still holding firm.

A questioner asked if Islamic leaders essentially have freedom from hate speech laws in their strong comments about “Jews, and women, and homosexuals.” Coleman responded that “in the name of multiculturalism” minority groups like Muslims “get a free pass.” This situation is, however, changing, “in the light of recent terrorist attacks.” The fact that people cannot “speak out” against immigration in Europe is “fostering a lot of genuine hatred.” He also observed that hate speech laws cannot be used against hostile speech directed toward a majority group, but only against hostile speech directed toward protected minorities.

Another questioner asked if free speech is constitutionally protected in Europe, as it is in the United States, but simply is not being respected by laws which restrict speech. Coleman said actual practice regarding free speech is different in Europe because free speech guarantees are interpreted differently. In Europe free speech guarantees not considered absolute, but subject to restriction by the legislature with laws that are essentially “bad tendency” laws, restricting speech that is thought to have bad consequences. He noted that the European Court of Human Rights has taken an increasingly pro-censorship position in recent years. Speech which is “offensive” is allowed, but speech that is “gratuitously” offensive is not allowed.

Coleman said that social conflict and hostility should be resolved, “but that the criminal law is not the tool to do this. It is counterproductive, it causes more harm than good, and we have no good examples of how it is working [well] in practice.” Coleman said that for free speech to advance, it is necessary that there be “reform or repeal” of Europe’s many hate speech laws. Beyond this, we need “a culture of respecting and valuing freedom of speech.” He believes that one of the reasons for the decline in free speech is the loss of “any sense of value, any sense of worth … in freedom of speech itself.” He maintained, finally, that the ultimate purpose of hate speech laws is to control thought, and that the true crime involved in hate speech violations is a thought crime. “Thought crime is at the center of the mentality of these laws.”