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Balkinization (balkin.blogspot.com)
January 3, 2012 Tuesday 7:48 PM EST
You Must Remember This....
BY: Ken Kersch
A coda to my earlier post on the regulation of hate speech in Europe
and the U.S.... The following day, the New York Times had another
interesting article on the subject. The paper reported a major
diplomatic rupture between France and Turkey following the approval by
the lower house of the French parliament of a bill that would make it
a crime for anyone to deny that the Turks committed genocide against
the Armenians in the early twentieth century. Especially notable was
the fact that Turkey has its own law that is the mirror image of the
proposed French legislation - a law, that is, that makes it a crime in
Turkey for anyone to affirm that the Turks committed genocide against
the Armenians.
Let's look at this from the perspective of the (purported) aspirations
of these two nations to "unite" under a common polity - the European
Union (which was created in significant part to prevent the Nazi
genocide (post hoc, of course...)). If, for a moment, we treat these
nations as true compatriots, the law of the European umbrella polity
now makes it a criminal offense to either deny or affirm the Armenian
genocide.
Is this what they call a "teachable moment"?
I would ask some analytic and developmental questions.
Rather than being crudely either "for" or "against" laws criminalizing
hate speech, might it be useful for social scientists, legal scholars,
and our students, to start making some more refined analytic
distinctions between different types of hate crimes regulations, and
the different contexts occasioning them? The Turkey-France contretemps
is a case of an effort to regulate a particular type of speech - the
articulation of a historical interpretation of events. Is this on
all-fours with the criminalization of European Holocaust denial? Is
David Irving's denial of the Nazi genocide a denial of (all but)
indisputable facts, whereas the Turkish denial is a matter of the
interpretation/characterization of the facts? When is a fact so
"factual" as to be indisputable? At a deeper level, is it possible to
form a common polity out of nations with utterly divergent historical
memories? What happens to law when it is not underwritten by memory?
Obviously, both parties here believe that a shared historical memory
is enormously important to a successful, sustainable polity (or else
they wouldn't have tried to impose it under penalty of law). Once the
EU unites (if the fantastical economic utopianism underwriting the
monetary union doesn't destroy it first....), will the seat of the
Ottoman Empire and Paris join in a shared historical memory in all
areas where it matters? What about the world? How much is the success
of any human rights regime dependent upon these convergences? What are
the consequences of seeking to legally coerce convergence?
The criminalization of historical interpretation is only one form of
hate speech regulation. There is also regulation applying to remarks
(casual/off-the-cuff, or with the specific intention to intimidate
--with diverse likelihoods of success), to the systematic propagation
of ideologies (or religions), to the legal recognition (or permitting)
of political parties (does it matter whether the political prospects
for such parties are high or hopeless?), to the legality of dismissals
from private or public employment, and so forth. These may all be
about regulating "hate," but they are not the same thing.
And what about context? How much would it matter if we are in an
immediate post-genocide situation (e.g. places in Africa), or well
down the road to a new day (Nazi western Europe)? Should these laws be
sunset-able (as Justice O'Connor famously suggested about racial
preferences in the U.S.) - implying that they are about managing
pluralism in a polity in which the underlying conditions are changing
and developing - or are they there to enforce and make a symbolic
statement of timeless principles? What about purportedly pre-genocide
situations? Or are hate speech regulations aimed more at less dire
matters of "nudging" us toward social and political equality under
more functional conditions? How bad do things have to be to justify
them? Or, from a different perspective, how good? Might these laws, in
some cases, serve to undermine the basis of that functionality?
To return to case of prosecution for articulating the wrong memory, of
course this is not solely a European matter. A large part of the
constitutional politics roiling the contemporary United States
involves aggressive efforts to sell divergent memories of the nation's
past: about the Founding, Reconstruction, the New Deal, the 1960s, the
1980s, etc. When are clashes of historical and constitutional memory
the necessary -- and perhaps even desirable -- features of a vital
constitutional polity, and when are they toxic? If toxic, when is the
time to step in with the criminal law... if ever?
In the throes of its currency debacle, Europe may be moving toward
fundamentally rethinking its theories of political/constitutional
unity. Might this be necessary outside the economic realm as well?
From: Emil Lazarian | Ararat NewsPress
January 3, 2012 Tuesday 7:48 PM EST
You Must Remember This....
BY: Ken Kersch
A coda to my earlier post on the regulation of hate speech in Europe
and the U.S.... The following day, the New York Times had another
interesting article on the subject. The paper reported a major
diplomatic rupture between France and Turkey following the approval by
the lower house of the French parliament of a bill that would make it
a crime for anyone to deny that the Turks committed genocide against
the Armenians in the early twentieth century. Especially notable was
the fact that Turkey has its own law that is the mirror image of the
proposed French legislation - a law, that is, that makes it a crime in
Turkey for anyone to affirm that the Turks committed genocide against
the Armenians.
Let's look at this from the perspective of the (purported) aspirations
of these two nations to "unite" under a common polity - the European
Union (which was created in significant part to prevent the Nazi
genocide (post hoc, of course...)). If, for a moment, we treat these
nations as true compatriots, the law of the European umbrella polity
now makes it a criminal offense to either deny or affirm the Armenian
genocide.
Is this what they call a "teachable moment"?
I would ask some analytic and developmental questions.
Rather than being crudely either "for" or "against" laws criminalizing
hate speech, might it be useful for social scientists, legal scholars,
and our students, to start making some more refined analytic
distinctions between different types of hate crimes regulations, and
the different contexts occasioning them? The Turkey-France contretemps
is a case of an effort to regulate a particular type of speech - the
articulation of a historical interpretation of events. Is this on
all-fours with the criminalization of European Holocaust denial? Is
David Irving's denial of the Nazi genocide a denial of (all but)
indisputable facts, whereas the Turkish denial is a matter of the
interpretation/characterization of the facts? When is a fact so
"factual" as to be indisputable? At a deeper level, is it possible to
form a common polity out of nations with utterly divergent historical
memories? What happens to law when it is not underwritten by memory?
Obviously, both parties here believe that a shared historical memory
is enormously important to a successful, sustainable polity (or else
they wouldn't have tried to impose it under penalty of law). Once the
EU unites (if the fantastical economic utopianism underwriting the
monetary union doesn't destroy it first....), will the seat of the
Ottoman Empire and Paris join in a shared historical memory in all
areas where it matters? What about the world? How much is the success
of any human rights regime dependent upon these convergences? What are
the consequences of seeking to legally coerce convergence?
The criminalization of historical interpretation is only one form of
hate speech regulation. There is also regulation applying to remarks
(casual/off-the-cuff, or with the specific intention to intimidate
--with diverse likelihoods of success), to the systematic propagation
of ideologies (or religions), to the legal recognition (or permitting)
of political parties (does it matter whether the political prospects
for such parties are high or hopeless?), to the legality of dismissals
from private or public employment, and so forth. These may all be
about regulating "hate," but they are not the same thing.
And what about context? How much would it matter if we are in an
immediate post-genocide situation (e.g. places in Africa), or well
down the road to a new day (Nazi western Europe)? Should these laws be
sunset-able (as Justice O'Connor famously suggested about racial
preferences in the U.S.) - implying that they are about managing
pluralism in a polity in which the underlying conditions are changing
and developing - or are they there to enforce and make a symbolic
statement of timeless principles? What about purportedly pre-genocide
situations? Or are hate speech regulations aimed more at less dire
matters of "nudging" us toward social and political equality under
more functional conditions? How bad do things have to be to justify
them? Or, from a different perspective, how good? Might these laws, in
some cases, serve to undermine the basis of that functionality?
To return to case of prosecution for articulating the wrong memory, of
course this is not solely a European matter. A large part of the
constitutional politics roiling the contemporary United States
involves aggressive efforts to sell divergent memories of the nation's
past: about the Founding, Reconstruction, the New Deal, the 1960s, the
1980s, etc. When are clashes of historical and constitutional memory
the necessary -- and perhaps even desirable -- features of a vital
constitutional polity, and when are they toxic? If toxic, when is the
time to step in with the criminal law... if ever?
In the throes of its currency debacle, Europe may be moving toward
fundamentally rethinking its theories of political/constitutional
unity. Might this be necessary outside the economic realm as well?
From: Emil Lazarian | Ararat NewsPress