The Magazine

Liberty for All

Free speech is the American way.

Apr 19, 2010, Vol. 15, No. 29 • By ELIZABETH POWERS
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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.

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