Extreme Speech and Democracy

edited by Ivan Hare and James Weinstein

Oxford, 500 pp., $175

For James Madison, author of the Bill of Rights, “the People, not the Government, possess the absolute sovereignty.” Freedom of speech and the press, the right to assemble and petition, set down in the First Amendment to the Constitution, were instruments by which the people would exercise “censorial power” over the government, not the other way around. What has been clear this past year, however, as protesters exercised their First Amendment right to oppose a government takeover of health care, was how little understood is the principle of popular sovereignty among the media—or, indeed, much of our governing class.

Popular sovereignty, as William Anderson recently wrote in these pages, distinguishes America from all other advanced countries and “stands with hardly a seconding voice throughout the contemporary international community.” Paternalism, whether of a benevolent or a tyrannical sort, is laid down in the DNA of most governments, and the rest of the so-called West is no exception. While the press in Western Europe still functions as a check on government, individual citizens suffered from “democracy deficit” long before the European Union added flesh to that term. Extreme Speech and Democracy powerfully documents the differing assumptions of government in the United States and the rest of the world in regard to the issue of speech. Even the title of this book telegraphs the enduring problem that elites, the class that formulates government policy, have with the “people.”

Extreme Speech has its origin in a 2007 conference at Cambridge. Contributors include lawyers representing eight national legal traditions, with the majority from Great Britain, as well as “policy advisers,” psychologists, a philosopher, and even one playwright. It contains several interesting tables, running to 20 tightly spaced pages, of free speech cases and legislation, both international and national, as well as a table of three pages of conventions and international instruments. Arab and African nations are parties to such conventions, but all the cases and legislation discussed here are products of democratic countries. Among the subjects treated are religious dress, Holocaust denial, racial hatred, disabilities, obesity, homophobia, xenophobia, and the glorification of terrorism. (Nothing, however, on global warming skepticism.)

It may be the preponderance of lawyers among the contributors, but there is throughout a certain obfuscation—think the guarded equivocations of our Lawyer-in-Chief—even on what constitutes “extreme speech” or “hate speech.” Does it include only racial epithets and fighting words and the like; or are discussions of, say, the merits of affirmative action instances of speech that “stigmatize” minorities? Extreme Speech and Democracy is not exactly a ringing defense of free speech, much less speech of the extreme variety.

Interestingly, the Mohammed cartoons controversy of 2005-06, one of the major free speech issues of our time, is treated directly in only a single chapter. The controversy is of interest for revealing the fault line between our free speech jurisprudence and that of Europe. Justice Holmes’s “clear and present danger” test of 1919—referring to convictions of war protesters during World War I—has long given way to laws hostile to regulating public discourse on the basis of the content expressed. Europe is a different story: The protests over the Mohammed cartoons were worldwide news; less well known is that Muslim groups in Denmark filed a complaint against the Jyllands-Posten for offenses committed under sections of the Danish criminal code concerning blasphemy or degradation with malice toward persons based on (among other things) race, color of skin, national or ethnic roots, or faith and sexual orientation.

Despite the right to freedom of expression contained in Article 10 of the European Convention on Human Rights and Fundamental Freedoms (which came into force in 1953), the European Court of Human Rights is also, according to Ivan Hare, a barrister at Blackstone Chambers in London, “the most comprehensive and developed system for supranational human rights protection.” It protects, inter alia, the right to life; freedom from inhuman and degrading treatment or punishment; freedom from slavery and forced labor; and the right to education. Additional protocols have abolished the death penalty, provided protection for aliens, and established a “general prohibition on discrimination.”

From the evidence of Hare’s essay, which is eye-opening and stomach-turning at the same time, Europe is tied up in the procedural knots of protocols, conventions, directives, and frameworks addressing the evils of sexual discrimination, racism, xenophobia, and religious intolerance. So many enumerated rights naturally produce litigants, and since individuals may petition directly against their own national governments, cases at the full-time court in Strasbourg have grown from 138 in 1955 to over 41,000 in 2005. Remember the anti-Stalin jokes that landed people in the Gulag? The Stasi, with a quarter of the East German population on its payroll, couldn’t silence the population with the efficiency or effectiveness of the European Court of Human Rights. Freedom of expression, even in the moderated form in which it exists in Article 10 (entailing “the protection of the reputation or rights of others”), is a joke.

The United States is not immune to this trend to suppress “offensive” speech, and the views represented in Extreme Speech reflect interpretive battles that have been going on here since at least the early 1980s. These battles pit so-called critical legal scholars (Steven Heyman and, more famously, Catharine MacKinnon, who is not represented in Extreme Speech) against defenders of what this legal movement refers to as “First Amendment ideologues” (represented with a robust First Amendment defense by Ronald Dworkin). Viewing law as serving the interests of the powerful, these critics of an expansive reading of the First Amendment ground their demand for restrictions in a provision of the Fourteenth Amendment concerning “equal protection of the laws.” Liberal constitutions, they complain, have not reduced social inequality.

Of course, Stalin had tons of power, could murder his opponents—and he still couldn’t get socialism to work. Socialism, however, remains one of those vampires (like anti-Semitism) that refuses to die: Despite its past failures, each generation believes it can do it right this time around. Thus, the essays here that favor restrictions on speech and the media refer to the disempowered, to hegemonic elites, democratic legitimacy, collective defamation, asymmetry of power, and so on. They speak of the “need” to “redefine” liberal democracy; for the state to guarantee a minimal standard of protection for vulnerable minorities against “organized” racists; for “cultural policy which would build capacity within minority communities.” Stomach-turning Orwellian doublespeak, yet all too familiar.

The legal scholar referred to most frequently here is Robert Post, who was appointed dean of the Yale Law School last June. His chapter begins with a certain literary flair, quoting Charles William Eliot and even Barry Goldwater (“Extremism in the defense of liberty is no vice”) on the place of extreme emotions in society. But he, too, is ultimately evasive. He asks, for instance (without giving an answer), whether speech “attacking Islamic fundamentalism for its homophobia and suppression of women [is] hate speech or critique?” He would not have us believe that “simple disagreement can be taken as conclusive evidence of extremism or hatred,” but will only go so far as to say that we “moderns” are embarrassed by such a notion.

Dean Post is known to be a “liberal” on the First Amendment, but his views show the social and antidemocratic mischief produced by the issue of hate speech. His subject is the conjunction between freedom of speech and “ambient social norms,” the “group attitudes that we all carry around in us all the time and that form the foundation and possibility of our very ‘selves.’” Fair enough—and, as he writes, norms do evolve, and yes, they are contestable. It is also the case that schools and the law “offer authoritative interpretations of norms.” As evidence of how norms evolve, however, he makes a misleading analogy, comparing earlier laws against blasphemy with hate speech regulation, as exemplifying “the aspiration of law to enforce norms that it regards as especially important for community and personal identity.” (Emphasis added.) Some of us see a difference between the legal system acting to favor social norms that have traditionally proven of benefit for society—e.g., two parents are better than one for raising a child—and a system that provides the tools by which the government imposes new norms in the cause of social equity, a process that will produce employment for lawyers for generations to come.

In truth, hate speech is a bogus issue, representing not an attempt to reduce discrimination but a cynical instrument to muzzle criticism of the failures of half a century of quasi-socialistic government programming. When people protest against affirmative action or immigration, it is not the minorities or the Mexicans against whom they are being “hateful.” They are exercising their censorial power against government policy. Even eminent legal scholars run scared in the face of this cynical criminalization of speech.

As Post himself points out, law “actually enforc[es] the mores of the dominant group that controls the content of law.” It appears that the role of convention, tradition, and the “group attitudes we all carry around in us” (and the support of those by the law) is on the decline in Europe; in place of these, the enforcement of mores is remorselessly aggregated in an unelected class claiming to advance some overriding social good. Post’s predecessor at Yale is Harold Hongju Koh, appointed by Barack Obama as legal adviser to the State Department, who has urged application of international law and foreign legal precedent in U.S. judicial decision-making. Imagine the European Court of Human Rights as American law.

Offering specific instances of the way the process works in England (but without the obfuscation) is a chapter by James Weinstein, professor of law at Arizona State, and among the cases he discusses are ones that even the most hard-core American leftist might consider egregious violations of the First Amendment. One involved a Christian preacher who was arrested for violation of the Public Order Act for standing on a street corner in Bournemouth with placards bearing the slogans “Stop Immorality,” “Stop Homosexuality,” and the like. All his legal appeals were turned down by English courts. Weinstein sees in English law a disturbing tendency toward the exclusion of speech from public discourse—on the grounds of violating the rights of others—as a variation on Justice Holmes’s test of “clear and present danger.” America’s early 20th-century experience, in the convictions of Eugene Debs and 2,000 other individuals for their harsh criticism of American involvement in World War I, offers a valuable lesson today, writes Weinstein, for society has “a reliable tendency .  .  . to suppress ideas that offend dominant opinion.” If you think the United States will avoid Europe’s experience, note that the hate crimes legislation currently under discussion in the Senate would apply (according to the testimony of Attorney General Eric Holder) to preachers speaking out against homosexuality from the pulpit.

Weinstein’s contributions to Extreme Speech and several other chapters (for instance, the one on Israeli law by Amnon Reichman) document impressive attempts by Western judiciaries to balance competing social goods. It was also a relief to read one sensible leftist—C. Edwin Baker of the University of Pennsylvania—who makes the point that the evidence doesn’t show that hate speech regulation has much effect on curbing hate. Thus, while Michael Whine (director of the British defense agency of the Jewish community) contends that “a society’s treatment of its Jews is a paradigm for how it will treat all minorities,” the sad fact is that, despite criminalization of Holocaust denial, Jews in Europe are less secure than at any time since World War II—unlike in the United States, where even Nazis can march down city streets.

While Extreme Speech and Democracy highlights the continuing retreat in the West from freedoms achieved by our forefathers two centuries ago, non-Western peoples in many places in the world are putting their lives on the line for those freedoms. Freedom of speech, with the right to protest against government, is where the struggle begins.

Elizabeth Powers is editing a collection of essays on the intellectual origins of freedom of speech in the 18th century.

Next Page