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

71 thoughts on “No, The U.S. Does Not Need European-Style Hate Speech Laws”

    1. ” the ideas that led to the Bolshevik Revolution, and ultimately the deaths of 20 million, began in fervent reading groups of messianic young Marxist intellectuals. People who do not pay attention to what intellectual and cultural elites say, or who dismiss it as eggheaded nonsense, are fools.”

      yes that’s right. where does this come from? it’s not from the medieval world– they understood that ideas have consequences. in my mind this is some sort of pragmatism. it’s an American habit and a bad one. we always come up short handed because John Q Public thinks ideas don’t have consequences.

      Ayn Rand pointed out this dynamic to “conservatives” a long time ago, about the only thing i care to remember about her these days and boy was she right about that. maybe early 1960s, before my time. ideas have consequences.

  1. European hate speech laws– which proliferated in the 80s– and enforcement really took off in the 90s– have helped the right organize into a more effective electoral force from where it was in its nadir of the 60s.

    The same dynamic might arise here too.

    There are some on the right who have welcomed the end of free speech even as they realize that they will be the first objects of attack. It means a new phase in conflict has been joined, and one that will favor the popular forces over the long haul. And not the financial forces who think they will be able to enforce a controlled speech regime in their vain fantasies.

    They will waste a lot of time and effort and make tons of enemies in the process,. For starters. They will make it easier to eliminate cranks from the ranks. There are a lot of silver linings to a decline in free speech.

    And then there is this one: when power has been attained, the old restrictions will have so fallen away, that payback will be a beech.

  2. Man runs his fanny off trying to find the means to address the latest crises engulfing the world. Before he’s finished he has nine other fires to put out. They revolve around the same issues dressed in different clothing.

    Greed, selfishness, pride, hatred, deceit, falsehoods, jealousy, envy, slothfulness, lust, unfaithfulness, vengefullness. These are the things that underlie most of our wars, fights and problems.

  3. Who seeks to erode individual rights? Opposes the rule of law? The Left.

    “So what we’re seeing, in a desperate effort to try to find crimes against President Trump: they’re just making it up. And that means we are all in danger, because if we can make up a crime — Congressman Cohen of Tennessee said that me and others who appear on Fox essentially were co-conspirators; we’re in on it. He’s now threatening people who are commentators, a liberal Democrat like me, who’s a commentator, that we’re in on it, that we’re co-conspirators. It is such a dangerous development to civil liberties.”

    https://www.dailywire.com/news/listen-liberal-democrat-dershowitz-compares-democrats-to-russian-secret-police-under-stalin-blisters-cnn

  4. Republicans are pathetic

    ******

    https://patriotssoapbox.com/opinion/virginia-is-for-sexual-predators/

    Virginia Is For Sexual Predators …

    Former Virginia Democrat lawmaker Joe Morrissey, once jailed for having sex with an underage girl, was elected to the Virginia State Senate. Sadly, the Republicans did not even run a candidate against him. We saw this when we went to vote last week, that several Democrats were running utterly unopposed in Virginia.

    1. Approximately half the population of the state lives in NoVa, greater Richmond, the Tidewater urban complex, or around Charlottesville. Republicans are at a disadvantage in these zones, but not a comprehensive and insuperable disadvantage. Without checking the map, I gather they just crapped out in 80% of the constituencies where they’d have had a slog.

      The lawfare campaign against former Gov. McDonnell and his wife eventually failed, with their convictions vacated unanimously by the U.S. Supreme Court. As ever, federal prosecutors only get creative when they have a Republican in their gunsights.

  5. Americans might want to consider that most modern music includes “political” speech and some law makers have tried to censor music (from Rap to Rock to Country music). Today in 2019, some radio stations are now blocking out parts of songs that may offend some people. Some cable cable companies – without notice – are providing streaming services where the movies are edited to remove anything deemed offensive and we are paying for those redacted movies. Using this measuring stick, couldn’t we censor movies about Christianity, war movies, Clint Eastwood, Spaghetti Westerns, etc. Once you censor someone else’s freedoms, it can be used against you also. Censorship is always a bad idea and it’s nearly impossible to do fairly. If you are offended, turn the channel or “unfriend” the source of offensive material. Allowing government to assume authority, they don’t have under the First Amendment, is always bad for Americans.

    1. Americans might want to consider that most modern music includes “political” speech

      Were that true, it would be an indicator that most generators of ‘modern’ music damage their craft with their own self-aggrandizing foolishness.

      1. Response to “This is absurd…”:

        How about songs by Toby Keith, Charlie Daniels, Dixie Chicks, Marvin Gaye, Stevie Wonder, Bob Dylan, Neil Young, Rolling Stones, Beatles, NWA rap group, Simon & Garfunkel, Johnny Cash. The 1990’s TV series “China Beach” has a vast selection of Vietnam War era songs to name a few.

        1. Other than Dylan, I doubt protest songs are more than a single-digit share of the output of any of these people. (I wouldn’t classify the output of NWA as ‘music’). They were certainly challenging after a fashion (compared to figures in popular music as it was ca. 1952), but that challenge was not an explicitly political challenge except on the margins.

          1. lots of hip hop has been politically oriented. but i can’t relate to most of those things, personally.

            “heavy metal” is imbibed with 20the century political themes. it encounters issues without necessarily judging them. decades later, sometimes i think iron maiden for example, is anti-british-imperialist, except, you wouldn’t know it from one of their concerts. you could write thesis on why the wall by pink floyd is anti-fascist and another one on why it’s fascist. motorhead. same thing metallica. led zepplin, black sabbath, all these are direct expressions of the bleak mood of the postwar men of the men of the west from 70s until now.

            nihilism is the chief mood. and as one of the primary moods of postmodern “West,” it is very germane to politics.

            they can ban music. but it generally just makes it more popular.
            In Germany a couple decades ago, they incarcerated one or two members of a punk/ racist band Dresden for “seigheiling.”

            now they have to shut down whole venues. it the policy working?

            https://www.thelocal.de/20181202/german-police-shut-down-concert-over-sieg-heil-chants

  6. A few terms for those who seek to overturn individual rights, Socialist, Communist, Fascist, Dictatorial, Authoritarian, …. Orwellian! May these people leave the planet earth with great expediency!

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