No, The U.S. Does Not Need European-Style Hate Speech Laws

Below is my column in USA Today on the latest calls for limiting free speech and imposing censorship on political speech. Last week, we discussed the refusal of students to allow former Attorney General Jeff Sessions to speak at Northwestern University and a New Yorker writer calling for the curtailment of free speech. These attacks are coming largely from the left where speech criminalization and censorship has become an article of faith for activists and some Democratic members.

Roughly 70 years ago, Justice William O. Douglas accepted a prestigious award with a speech entitled “The One Un-American Act,” about the greatest threat to a free nation. He warned that the restriction of free speech “is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.” For decades since Douglas’ famous speech, the Democratic Party has been a champion of free speech in fighting that subversion. Yet recently, the Democratic Party seems to have abandoned its historic fealty to free speech. Democratic writers and leaders are publicly calling for everything from censorship to the criminalization of free speech. The latest such clarion call appeared in The Washington Post by a column from MSNBC analyst and former Obama official Richard Stengel.

Stengel’s proposal would rip up this founding principle

Stengel, the former managing editor of Time magazine, made a chilling call for Americans to give up their free speech. He began this self-destructive pitch in the most curious way: referring to the understandable confusion of Arab diplomats over our failure to arrest those who insult religion for such acts as burning the Koran. Stengel explained how he could not really explain why we tolerate such insulting forms of speech. It was a telling example. Stengel served at the State Department under the Obama Administration, which some of us criticized for a change in policy to support countries like Saudi Arabia in seeking to create a “new” standard allowing the criminalization of speech that insults religion at the United Nations. The resolution was a thinly disguised blasphemy law, something Muslim nations have been pushing for decades.

Stengel insists that the Arab diplomats raised a “fair” question, ignoring that it is a question raised by countries that routinely execute and flog those who insult religion or the government. Stengel insists “the First Amendment protects the ‘thought that we hate’ but it should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw.” That “design flaw” is free speech itself.

Stengel is not alone. Recently, Facebook founder Mark Zuckerberg was denounced by Democratic members like Rep. Alexandria Ocasio-Cortez (D., NY) for refusing to censor false or misleading political ads. Ocasio-Cortez dismissed the dangers of the censorship of political speech and demanded, “So you won’t take down lies or you will take down lies? I think that is just a pretty simple yes or no.” The push for corporate speech controls is particularly chilling because our first amendment protects against government regulation of speech. The Democrats are seeking to use corporations like Facebook to do what the government cannot do under our Constitution.

It seems Democrats have fallen out of love with free speech and lost all tolerance for opposing views. In another example, San Francisco recently declared the National Rifle Association to be a terrorist organization while banning official business with roughly half of the states for failing to “reflect our values” on abortion or LGBTQ rights. Likewise, Democratic leaders like former Vermont Governor Howard Dean have dismissed the notion that hate speech is protected under the First Amendment.Get the Opinion newsletter in your inbox.

Yet the most chilling aspect of the recent calls for speech controls is the call for the adoption of European-style hate crime laws. Free speech is in free fall in Europe where countries like France, Germany and England routinely charge people for speech deemed offensive or insulting to any group. These laws, Stengel assures readers, are intended to “curb the incitement of racial and religious hatred.”

They do so by dramatically curbing free speech. In France, 12 protesters were fined for supporting the boycott of Israel. In Denmark, a politician was convicted for burning Korans. A German politician was criminally charged for calling migrants “scum.” In England, a Baptist minister was jailed overnight for preaching against homosexuality and a man was investigated for telling a Nelson Mandela joke.

Limiting free speech won’t accomplish what you want

None of this, mind you, has put a dent in the ranks of actual fascists and haters. Neo-Nazis are holding huge rallies by adopting new symbols and coded words while Germany arrested a man on a train because he had a Hitler ring tone on his phone.

The impact of these laws was evident in a recent poll of German citizens. Only 18% of Germans feel free to express their opinions in public. 59% of Germans did not even feel free expressing themselves in private among friends. And just 17% felt free to express themselves on the Internet. 

That is the real success of hate speech laws. These laws are so generally worded that no one can be sure that they are not committing a crime. France bars incitement to racial discrimination, hatred, or violence on basis of race, origin, ethic group, religion or national identity. That includes such statements in private communications. In the United Kingdom, you can be arrested for language deemed “threatening, abusive, insulting” or “likely to cause[] harassment, alarm, or distress.”

These standards notably depend not on how words are intended but how they are received or perceived by third parties. These European laws allow the government to declare what speech is true and what is false. They are based on the very notion stated by Stengel, “All speech is not equal.” Thus, “where truth cannot drive out lies,” Stengel argues, we must allow the government and private companies like Facebook to teach citizens not to tell lies.

While our leaders may have lost faith in free speech, citizens would be wise to listen to the words off framers like Benjamin Franklin who warned the citizens about those who try to convince a free people to give up their freedoms: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley