There is an interesting decision out of Geneva where Switzerland’s Federal Tribunal, their top court, ruled that a Nazi salute is not a criminal gesture if it meant as a personal statement. For Americans, it is a decision that may seem oddly framed since we treat such gestures as clearly protected. However, given the criminalization of Nazi symbols in Germany and France, the ruling is viewed as a more liberal approach to free speech. Even jokes have been criminalizes in England and France.

I have long been a critic of the criminalization of symbols and gestures while I understand the deep injury in these countries ravaged by the Nazi regime. I view it as not just a violation of free speech but a futile effort to stamp but extremism by barring certain symbols. Instead, extremists have rallied around an underground culture and embraced symbols that closely resemble those banned by the government. I fail to see how arresting a man for a Hitler ringtone is achieving a meaningful level of deterrence, even if you ignore the free speech implications.

This opinion captures the uncertain line drawn by courts in the area. Free speech demands bright lines to avoid chilling speech through uncertain rules and enforcement. The court overturned the conviction of a man who gave the salute in during a demonstration in August 2010. He was charged with racial discrimination. The man had substituted the Swiss oath with a 20-second Nazi salute. The Court ruled that he was expressing his personal beliefs and not using the salute to spread, advertise or propagate racist ideology with the intention of influencing others. While I appreciate the ruling in favor of free speech, I fail to see the distinction. Any salute is designing to public proclaim allegiance to an ideology or country. As such, it advertises an ideology and seeks association with those with similar views.

The problem is trying to draw such lines rather than embracing free speech as protecting not just popular but unpopular and even hateful speech. Once you start as a government to criminalize speech, you end up on a slippery slope of censorship. What constitutes hate speech remains a highly subjective matter and we have seen a steady expansion of prohibited terms and words and gestures. We have been following (here and here and and and here and and here and here) the worsening situation in England concerning free speech. As noted in a recent column, free speech appears to be dying in the West with the increasing criminalization of speech under discrimination, hate, and blasphemy laws.

Most of us find the Nazi salute to be deeply offensive. However, I would prefer to deal with such views in the open public forum rather than forcing such views underground and converting these extremists into self-described victims. Suppressing symbols of hate does little to deter hate. It gives these groups a rallying cause and simply results in mocking variations of symbols designed to evade government controls like the “quenelle.”

Source: US News