Announcement

Collapse
No announcement yet.

Hear No Evil, Speak No Evil

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Hear No Evil, Speak No Evil

    CBS News
    April 7 2006

    Hear No Evil, Speak No Evil

    April 6, 2006
    Quote

    Free expression is so foundational to democracy that there is usually
    a strong bias against restricting speech unless it poses a compelling
    and even imminent danger to others.

    (CBS) This column was written by Gerard Alexander.

    On February 20, an Austrian court sentenced the notorious British
    writer David Irving to three years in prison for denying in a 1989
    speech that Auschwitz contained gas chambers. Many American observers
    had mixed reactions. They saw Irving as a loathsome anti-Semite but
    were uncomfortable with the thought of a person serving time behind
    bars for something he wrote or said, no matter how noxious.
    Journalist Michael Barone probably spoke for more than a few when he
    said that he "shuddered" at the news of Irving's imprisonment, "yet I
    can understand why Austria, like Germany, has laws that criminalize
    Holocaust denial and glorification of Nazism. History has its claims
    - heavy ones, in the cases of Germany and Austria." In other words,
    criminalizing speech might not be the American way of doing business,
    but it's understandably Austria and Germany's way of dealing with
    their unique Nazi past.

    The trouble is that Austria's anti-Nazi legislation is the tip of an
    iceberg of political speech laws across Europe. Of course, all
    governments restrict some speech. But free expression is so
    foundational to democracy that there is usually a strong bias against
    restricting speech unless it poses a compelling and even imminent
    danger to others. The most pervasive and durable restrictions meet
    that test, applying to things like child pornography, false
    statements that result in demonstrable harm (defamation), the
    exposure of national security information, commercial fraud, and the
    proverbial shouting of "Fire!" in a crowded theater.

    In addition, European countries have never had America's strong
    free-speech tradition. Nevertheless, three disturbing trends now
    under way in Europe together represent the greatest erosion of
    democratic practice in the world's advanced democracies since 1945.
    First, anti-Nazi laws are being adopted in places where neo-Nazism
    poses no serious threat. Second, speech laws have been dramatically
    expanded to sanction speech that "incites hatred" against groups
    based on their religion, race, ethnicity, or several other
    characteristics. Third, these incitement laws are being interpreted
    so loosely that they chill not just extremist views but mainstream
    ones too. The result is a serious distortion and impoverishment of
    political debate.

    After 1945, Germany in particular passed strict anti-Nazi laws,
    making it illegal not only to form a neo-Nazi party but also to
    champion Nazi ideology, downplay Nazi crimes, print "Mein Kampf," or
    even air the Nazi musical anthem, the "Horst Wessel" song. At the
    time, many believed that these restrictions met the test of averting
    immediate danger. Given what had happened between 1933 and 1945, it
    seemed airing pro-Nazi or anti-Semitic views was the equivalent of
    shouting "Fire!" in the crowded theater of Austria and Germany's
    troubled cultures. As it turned out, neo-Nazis proved too marginal
    even to come close to posing a serious danger to Germany or Austria's
    new democracies, with real neo-Nazis never winning even 5 percent of
    the vote. So the necessity for these restrictions became less and
    less clear with time.

    But instead of being pared back, anti-Nazi legislation spread. Laws
    criminalizing Holocaust denial or minimization were adopted well into
    the 1990s in France, Switzerland, Belgium, Spain, and other European
    countries (and several countries outside Europe). What these laws
    could accomplish was unclear, since they were adopted when
    neo-Nazism's prospects seemed more remote than ever. In all these
    countries, including Germany and Austria, governments don't really
    have to ban neo-Nazis; voters do it for them through indifference.
    Nonetheless, anti-Nazi laws have proved uncontroversial, maybe
    because their sanctions fall on unsavory figures from Europe's
    anti-Semitic fever swamps.

    This is unfortunate, because anti-Nazi laws gradually expanded to
    cover other historical events. In 1993, Bernard Lewis, the eminent
    Princeton historian of the Middle East, was asked in an interview
    with Le Monde about the mass murder of Armenians in Turkey during
    World War I. He readily acknowledged that terrible massacres took
    place but questioned whether the murders were the result of a
    predetermined - that is, genocidal - plan. That conclusion brushed up
    against French laws that now prohibit denial of more crimes against
    humanity than just the Holocaust. Several activist groups in France
    filed complaints. Two civil and one criminal suit were dismissed, but
    Lewis was found guilty in another civil suit and condemned by the
    court for having not been "objective" regarding events that the
    European Parliament and other bodies had officially certified as a
    "genocide."

    The expansion of the speech laws beyond the Holocaust is revealing.
    Especially once it became evident that neo-Nazis were politically
    marginal, it was unclear exactly what risk Holocaust deniers posed.
    An alternative interpretation is that bans on denial were never
    really about averting the menace of Nazi revivalism. They were
    motivated instead by the fact that good people were offended by
    Holocaust denial. That this is really what's at work is confirmed by
    laws prohibiting denial of events like the Armenian murders - cases
    that pose no risk of old genocidal agendas' being revived.

    So genocide-denial laws can now be used to sanction professional
    historians whose research leads them to findings that these laws
    classify as unacceptable. And the anti-Nazi slope has proven more
    slippery than that. Denial laws have been supplemented by new laws
    that are even more prone to sanctioning reasonable people.

    Especially since the 1970s, Western Europeans have been passing bans
    on speech that "incites hatred" based on race, religion, ethnicity,
    national origin, and other criteria. These were adopted or beefed up
    in the 1980s in the face of rising violence against minorities and
    rising far-right parties like the French National Front. Such laws
    are now in place in Germany, Austria, Belgium, Sweden, Norway,
    France, Britain, and elsewhere. France's 1972 Holocaust denial law
    was expanded by the 1990 Gayssot law, which extended sanctions to
    denial of other crimes against humanity and points of view deemed
    racist. France's Conseil Supérieur de l'Audiovisuel monitors
    broadcasters for any statements that might incite racial hatred.
    Earlier British legislation against incitement of racial hatred was
    expanded in 1986 and was extended again in February 2006, this time
    to criminalize intentionally "stirring up hatred against persons on
    religious grounds." This is spreading to the European Union level,
    where a stream of rules now prohibits the broadcast, including
    online, of any program or ad that incites "hatred based on sex,
    racial or ethnic origin, religion or belief, disability, age or
    sexual orientation" or - crucially - is "offensive to religious or
    political beliefs."

    The highest-profile prosecutions under these laws have been of people
    and organizations very vulnerable to the charge of racism. Incitement
    charges have repeatedly been brought against the French National
    Front's Jean-Marie Le Pen, who regularly trades in slurs against
    blacks and Arabs. Similar charges were leveled against the Vlaams
    Blok, a Flemish nationalist party advocating the breakup of the
    bilingual Belgian state, which sometimes luridly stereotyped
    immigrants from the developing world as predisposed to criminality
    and welfare dependency. In November 2004, Belgium's highest court
    found the party guilty of racism, allowing the government to deny it
    state funding and access to television, in effect forcing the Blok to
    dissolve and re-form under a new name. At the time, the Blok was
    jockeying for first place in polls among Belgium's Flemish voters.

    But the anti-incitement laws now regularly target people who are well
    within the political mainstream. This is political correctness backed
    up with prison time. Britain's then-home secretary Jack Straw
    remarked in 1999 on criminal activity by people many of whom posed as
    gypsies or "travelers" - hardly a slur on all gypsies even without
    that qualifier. But a Travelers' group filed a complaint of inciting
    racial hatred, prompting a formal investigation and extensive media
    coverage asking whether Straw was racist. In 2002, the prominent
    French novelist Michel Houellebecq was charged with inciting racial
    hatred in a novel and interview in which he referred to Islam as "the
    stupidest religion." Veteran Italian journalist Oriana Fallaci was
    motivated by 9/11 to criticize Islam as violent and subversive of
    traditional European mores. As a result she faced a French attempt in
    2002 to ban her book as racist, and she is scheduled to stand trial
    in Italy in June for statements "offensive to Islam." One of her
    accusers, in turn, faces charges for calling the Catholic Church a
    "criminal organization."

    In May 2005, Le Monde, France's premier center-left newspaper, was
    found guilty of defaming Jews in a 2002 editorial that criticized
    Israeli policies while referring to Israel as "a nation of refugees."
    The appeals court found such juxtapositions made Israelis synonymous
    with Jews, so criticism of the former constituted incitement of
    hatred against the latter. After it published a series of
    controversial cartoons of Muhammad, the Danish newspaper
    Jyllands-Posten was formally investigated to determine whether the
    cartoons constituted prohibited racist or blasphemous speech.

    This swirl of speech-law charges, lawsuits, and investigations is now
    sustained by an "antiracism" industry. Dozens of antiracism groups
    and self-appointed representatives of religious and other
    communities, like France's Movement Against Racism and for Friendship
    Between Peoples (MRAP) and the Muslim Union of Italy, readily file
    complaints and suits and sometimes are the direct beneficiaries when
    fines are imposed. Their complaints provoke investigations by an
    alphabet soup of government agencies, like Belgium's Center for Equal
    Opportunities and Opposition to Racism and Britain's Commission for
    Racial Equality. These in turn feed into the court system. If America
    had practices like these, the debate over, say, the Dubai ports deal
    would almost certainly have sparked a shower of civil suits and
    criminal investigations against elected officials and columnists
    charged with "anti-Arab ... anti-Muslim" bigotry (to quote the
    Council on American-Islamic Relations).

    Not all cases, of course, result in punishment. Le Pen has been fined
    hundreds of thousands of dollars, neo-Nazi groups banned, Holocaust
    deniers and anti-Semites jailed in several countries, and the Vlaams
    Blok de facto dissolved. Le Monde was found guilty, but sanctioned
    with only a symbolic fine; Bernard Lewis with somewhat larger costs.
    The investigation of Straw was dropped; Houellebecq was acquitted;
    and the Danish prosecutors decided not to press charges against the
    Jyllands-Posten. But an increasing number of European intellectuals,
    politicians, journalists, and even scholars have had uncomfortable
    and expensive brushes with speech laws. In many cases, their
    reputation is tarnished; afterward their Wikipedia entry, so to
    speak, is never complete without mention of the official
    investigation for bigotry.

    So the real danger posed by Europe's speech laws is not so much
    guilty verdicts as an insidious chilling of political debate, as
    people censor themselves in order to avoid legal charges and the
    stigma and expense they bring. And the most serious chill is not of
    fringe racists but of mainstream moderates and conservatives.

    First of all, it turns out that some denials and incitements are more
    equal than others in Europe. For all the trials on charges of
    Holocaust denial, it is not clear that anyone has been charged with
    denial or minimization of crimes committed by Communist regimes. And
    the laws banning incitement of hatred on grounds of race, religion,
    ethnicity, or national origin do not ban incitement based on
    political orientation or economic status. Moreover, these laws
    protect speech that incites hatred against Americans and some others.
    And while there have been some convictions of Islamist radicals for
    inciting hatred against Jews and others, Europeans have been shy to
    move against the incitement pervasive in Islamist circles.

    In other words, Europe's speech laws are written and applied in ways
    that leave activists on the political left free to whitewash crimes
    of leftist regimes, incite hatred against their domestic bogeymen of
    the well-to-do, and luridly stereotype their international bogeymen,
    often with history-distorting falsehoods such as fictitious claims of
    genocide said to be committed by the United States and Israel. It may
    be no coincidence that Socialist and extreme-left parties have played
    central roles in the design of speech laws. The crafter of France's
    1990 Gayssot law, for example, was Jean-Claude Gayssot, a longtime
    Communist party officeholder. All this matters. It sends an important
    signal to the broader culture when Hitler is the symbol of evil while
    Stalin and Mao are given a pass, and when, in effect, Pat Buchanan's
    ideas risk indictment while Michael Moore's are protected.

    But the more serious bias comes out when anti-incitement laws are
    allowed to degenerate into the sanctioning of speech that causes
    "offense." It's not clear why avoiding offense should be a top
    priority to begin with. But when it is, the most important
    consequence is likely to be the chilling not of racist speech but of
    moderate and conservative thinking about major social problems. After
    all, two views tend to cause offense in our day and age. The first is
    the speech of bigots who denigrate members of other groups, calling
    them, say, inherently delinquent. The second is speech by modern
    moderates and conservatives who believe that problems like poverty,
    delinquency, and poor health can often - not always, but often - be
    traced to bad choices and mores and dysfunctional subcultures.
    Sometimes, problems are disproportionately concentrated within groups
    - of whatever class, race, ethnicity, or religion. Identifying these
    causes assumes they can be corrected; so identifying them is a
    prerequisite to improvement. This is the furthest thing from racism.
    It is the non-bigotry of high expectations.

    But in our hypersensitive age, this sort of speech is prone to being
    construed as prejudice - much more prone than the left's traditional
    language, which attributes people's problems to discrimination and
    other forces beyond their control. Moderate and conservative speech
    is even more likely to be tagged as bigoted when that tag is wielded
    cynically by political opponents. In the politically tilted world of
    Europe's media, intellectuals, and NGOs, this happens all the time.
    We know this is often cynical, because European speech-law advocates
    like Jean-Claude Gayssot are perfectly capable of criticizing Israel
    while insisting this doesn't mean they're anti-Semitic.

    Laws against any speech that causes "offense" are biased because they
    have the insidious effect of conflating bigoted speech and
    constructive criticism, two kinds of speech that should be sharply
    distinguished from each other. The result is the stigmatization of
    certain kinds of thinking about social problems and public policy
    that American conservatives, moderates, and even many liberals
    recognize as a legitimate part of serious debate. These speech laws
    won't ultimately silence extremists, whose careers won't end if
    they're called bigots and who often seek out controversy. But they
    can silence reasonable people who don't want that label and don't
    want a scandal.

    Between Europe's speech laws, hypersensitivity, and cynical
    demagoguery, constructive criticism can become virtually impossible -
    and self-censorship the norm. The effects are plain to see. European
    politicians, media outlets, and university discussions are routinely
    uncomfortable airing information - say, about rates of crime - that
    reflects unfavorably on the members of groups such as citizens of
    African or Middle Eastern descent, for fear that it will fuel
    negative stereotypes of these groups and open the broadcaster to
    charges of inciting hatred. Last fall, many French politicians and
    commentators carefully avoided characterizing the identities of the
    "youths" rioting in dozens of French cities and towns, and did not
    aggressively pursue that issue when peace was restored. This leaves
    it unclear even now who did what and why in the rioting - knowledge
    that is a prerequisite for a serious policy response to what
    happened.

    Consider the case of Alain Finkielkraut, a distinguished French
    philosopher. Last November, Israel's Haaretz newspaper interviewed
    him about the French riots. In blunt language, he said that poverty
    and discrimination could not explain the rioters' behavior since most
    poor communities in France did not torch cars. He believed public
    debate should acknowledge head-on that the rioters were heavily of
    Arab and African descent and bore aggressively anti-Western
    attitudes. He specifically insisted that neither all "blacks and
    Arabs" nor Islam as a religion were implicated in that statement. And
    he proposed that it was imperative to signal the rioters that calls
    for opportunity within a society had to be matched with a sense of
    responsibility to that society.

    Given that most French commentators flinched from serious engagement
    with the rioters' thuggish assault on France's public spaces,
    Finkielkraut's was a point of view that badly needed to be expressed.
    But after Le Monde offered the public a biased sample of his words,
    MRAP moved immediately to file legal charges against him, withdrawing
    the threat only when Finkielkraut appeared to apologize. While
    Finkielkraut has not renounced his original words, he and others like
    him have since been less outspoken. Public debate on an urgent matter
    was deprived of a viewpoint that identified where the real hatred
    resided, sought ways to retrieve segments of French youth from its
    grip, and exhorted France to expect more of its own people.

    The same deprivation can be seen in the initial handling of the
    recent kidnapping, 24-day torture, and then murder of Ilan Halimi, a
    young French Jew. For days after Halimi's body was found, authorities
    tried to avoid discussing the possibility that the kidnappers were
    Muslim and that anti-Semitism partly motivated them, despite powerful
    signs pointing in that direction. Officials wanted to combat
    anti-Semitism but not to paint Muslims in France as unattractively
    anti-Semitic. Many German authorities are similarly unsure what to do
    when young Germans of Turkish descent loudly cheer "Valley of the
    Wolves," the new anti-American and anti-Semitic Turkish hit film.
    Criticism might offend Turks, but silence risks offending Jews. The
    compromise is prevarication. The side effect is disrespect for
    morally flabby authority figures. And the result is impoverishment of
    public debate.

    The good news is that Europeans are questioning their illiberal
    speech laws as never before. For several years, scholars and
    intellectuals in France especially have been circulating petitions
    and counter-petitions regarding the wisdom particularly of the laws
    creating official accounts of history. Such skepticism has received a
    huge boost from the events surrounding the Danish cartoons. After
    their publication, a concerted campaign to drum up outrage in the
    Muslim world triggered demonstrations and riots in numerous places.
    With that violence as a backdrop, many Muslims inside and outside
    Europe have been insisting that European governments ban the
    cartoons. As models for this, they cite not only censorship rules in
    Middle Eastern countries but also Europe's own speech laws. Many are
    bewildered that speech offensive to Jews is banned but not speech
    offensive to Muslims.

    In response, many Europeans have found it difficult to justify these
    inconsistencies. Several European governments take the expected and
    untenable middle road: They refuse to ban the cartoons but plead with
    their media not to publish them either. Other Europeans, though, seem
    to be using their discomfort over the idea of banning the cartoons to
    ask whether they shouldn't get out of the business of banning
    political speech altogether.

    If they try, they won't have the backing of international law. The
    International Covenant on Civil and Political Rights - the code the
    U.N. Human Rights Committee is charged with enforcing - insists on
    the banning of "advocacy of national, racial or religious hatred."
    They also won't command the support of the world's best-known human
    rights organization. Amnesty International accepts speech laws as
    legitimate, so it generally excludes from its list of "prisoners of
    conscience" - that is, people "imprisoned solely for the peaceful
    expression of their beliefs" - anyone imprisoned for "advocacy of
    hatred."

    But reform-minded Europeans would have the example of U.S. practice,
    which tolerates even loathsome speech. They would also have the
    example of a rival human rights organization. Taking a principled
    stand in the face of a great deal of international practice, Human
    Rights Watch insists that governments should ban speech only when it
    "constitutes imminent incitement" to violence and other unlawful acts
    and urges reform of these laws, including repeal of Holocaust denial
    laws. Europeans of all political stripes should want to seize this
    opportunity to reverse the most dangerously illiberal trend in the
    world's advanced democracies. That would cease to make Europe a role
    model for censorship and restore it as a model of core democratic
    rights instead, expanding and not contracting its moral authority in
    the world.


    Gerard Alexander is associate professor of political science at the
    University of Virginia and a visiting scholar at the American
    Enterprise Institute.

    http://www.cbsnews.com/stories/2006/04/06/opinio n/main1479630.shtml
Working...
X