Viewpoint Absolutism and Hate Speech

Viewpoint Absolutism and Hate Speech

Eric Heinze*

All Western European states currently prohibit various forms of racist, sexist,

anti-religious, homophobic, or other intolerant speech. Yet hate speech bans gen

erate pervasive indeterminacy and contradiction. It might be assumed that they

are no different in that respect from other laws that are subject to vagueness, but

are nonetheless socially necessary. This article, however, rejects that assumption. It

is argued that hate speech bans' internal contradictions are not merely 'penumbraT,

but are pervasive, and cannot be re-drafted to eliminate that defect. In contrast to

traditional marketplace, peacekeeping or deontological theories, a coherence the

ory is proposed to suggest that Western European hate speech bans are inherently

discriminatory, and should be abolished It is further argued that post-World War

II models of a European social welfare state, sometimes invoked to justify limits

on unbridled liberalism, do not plausibly justify hate speech bans, and indeed

provide grounds for expanding, rather than constraining, free speech.

Die innediche Erregung, die wahre Leidenschaft, findet ihre eigentumliche Sprache

in dem Augenblicke, wo sie, nach Versatndnis ringend, zur Mitteilung sich anlafit: der

... Jude hat keine wahie Leidenschaft, am allerwenigsten eine Leidenschaft, welche

ihn zum Kunstschaffen aus sich drangte. [...] Was so der Vornahme derjuden, Runst

zu schaffen, entsprieJSt, mujS daher notwendig die Eigenschaft der Kalte, der Gleich-

giiltigkeit, bis zurTrivialitat und Lacherlichkeit an sich haben...

Richard Wagner1

What he really deserves most is ridicule.

Ernest Hemingway on Ezra Pound's anti-Semitism2

""Reader in Law, Queen Mary, University of London. This article benefited greatly from the comments

of Evert Alkema, Eric Barendt, Charles Calleros, Carolyn Evans, Jonathan Griffiths, Peter Molnar,

Michael Salter, David Seymour, Patrick Thomberry, James weinstein and Tony Wood. Thanks also to

the anonymous reviewers of the original submission. Ideas in this paper were first presented at a confer

ence entitled 'Mainstreaming Diversity', sponsored by the Luxembourg Government Commission for

Foreigners and Ministry for Family and Integration, 27-28 June 2005 at Mondorf-lcs-Bains, and a con

ference entitled 'Hate Speech from the Street to Cyber-spacc', 31 March-1 April 2006, in Budapest, Hun

gary, sponsored by The Floershcimer Center for Constitutional Democracy at the Benjamin N. Cardozo

School of Law and the Center for Media and Communications Studies (CMCS) at the Central Eur

opean University, Budapest Thanks also for an invitation to present parts of this paper at a Law Faculty

seminar of the University of Warwick, and for lively exchanges with my own colleagues at Queen Mary.

1 R. Wagner, TDas Judentum in dcr Musik" inj. Make Fischer, Richard Wagners 'Dasjudentum in der

MusiW (Frankfurt a.M: Insel, 2000) 162 ['Deep excitement, true passion finds its own voice at

the moment when, striving to be understood, it seeks expression... [T]he Jew has no true pas

sion, least of all the kind of passion that could drive him towards artistic creation. [...] Anything

that flows from Jewish artistic pretension must necessarily have an element of coldness, indiffer

ence, even triviality and foolishness... .'(my translation)].

2 BBC News World Edition, 'Faces of the Week: Ezra Pound' 13 August 2004, http://news.

bbcco.uk/2/hi/ulcnews/magazinc/3559924.stm (last visited 05/04/2006).

© The Modem Law Review Limited 2006 (2006) 69(4) MLR 543-582

Publiifaed by BUckwdl Publishing. 9600 Ganington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA


'Any advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law? That pronounce

ment of the International Covenant on Civil and Political Rights3 (ICCPR), arti

cle 20(2), counts among the strongest condemnations of hate speech. It has been in

force now for thirty years, alongside other international norms, and alongside

national prohibitions across the globe.4 It may well represent a norm of customary

law,5 which would mean that states would be responsible in international law for

banning at least some forms of hate speech even if they are not parties to the

ICCPR or other instruments containing similar norms.

Western European states have always counted among the most diligent adher

ents to the ICCPR, and have all adopted domestic hate speech bans. Albeit in a

non-binding resolution, the Committee of Ministers of the Council of Europe

(COM-COE) reflects the trend towards expanding the scope of hate speech bans

in calling upon member states to combat,

Statements ... which may reasonably be understood as hate speech, or as speech

likely to produce the effect of legitimising, spreading or promoting racial hatred,

xenophobia, anti-Semitism or other forms of discrimination or hatred based on intol

erance.6

That 'other forms' clause could plausibly be extended to any number of character

istics that have long been targets of abuse, such as sex7 or sexual orientation.8 For

example, a member of the French National Assembly has been convicted of

homophobia (injures homophobes) for claiming that heterosexuality is morally

superior to homosexuality.9

Against that global and European trend, the United States stands as a fierce

dissenter. Under the First Amendment to the US Constitution, the Supreme

Court has struck down10 precisely the kinds of hate speech bans that international norms require.11 As in so many areas, the United States can be seen as aberrant—

parochially, even wilfully, defying an international consensus founded on a

powerful humanitarian concern.12 From the death penalty to armed invasions to

3 993 UNTS 3, entered into force 3 January 1976.

4 Sec, eg, K. Boyle,'Hate Speech: The United States versus the Rest of the World?' 53 Maine Law

teview 487 (2001); J. and R. Delgado, 'A Shifting Balance: Freedom of Expression and Hate

Speech Regulation* (1992) 78 Iowa Law Rev 737; D. Krctzmcr, 'Freedom of Speech and Racism1

(1987) 8 Cardozo L Rev 445,464.

5 See, eg, Boyle, ibi/L 495-496.

6 Recommendation No R (97) 20E (1997), Principle 1 (my emphasis).

7 See, eg, European Convention on Human Rights (ECHR.), art 14 (including sex as an inadmis

sible ground of discrimination). Cf, eg, Boyle, above n 4,489. Cf also, eg, C MacKinnon, Otdy

Words (Cambridge: Harvard University Press, 1993).

8 See, eg, Salgueiro da Silva Mouta v Portugal, [1999] ECHR 176 (confirming sexual orientation as an

inadmissible ground of discrimination under ECHR article 14). Cf, eg, Boyle, ifcid 489. 9 'Lc depute UMP Christian Vanncste condamne pour injures homophobes', Le Monde, 25 Jan 2006,

http://www.lemondcfr/web/article/0,l-0@2-3224,36-734288,0.html (last visited 05/04/2006). 10 See, eg, R.A.V v St Paul, 505 US 377 (1992); Virginia v Black, 538 US 343 (2003).

11 Sec, eg,'Conclusions and Recommendations of the Committee on the Elimination of Racial Dis

crimination, United States of America,' UN Doc A/56/18 (2001), at para 391 (criticising US pro

tection of hate speech).

12 Cf, eg, E. Hcinzc'Inside the Outsider: Critical Race Theory against Human Rights?' (forthcom ing).

544 ©The Modem Law Review Limited 2006

(2006} 69(4) MLR 543-582

Eric Heinze

detention of 'enemy combatants', America's respect for human rights has raised

serious concerns, and many would hesitate before turning to American law for

lessons on civil rights and liberties. I shall not, then, undertake a thoroughgoing

defence of American approaches to human rights. I shall nevertheless argue that a

First Amendment approach to hate speech is not only preferable for stable, mature

and prosperous Western European democracies, but can in fact work better in

those states than it does in the United States.Western European states, by combin

ing First Amendment protections of speech with their traditional safeguards from

unbridled liberalism, are better situated than is the United States to combat intol

erance through non-coercive means. I shall therefore advocate the abolition of

hate speech bans in Western Europe.

As there is already a substantial literature on hate speech, I shall try to avoid

themes that have already received much attention. Instead, I shall focus on two

ideas. First, I shall adopt a theory of Viewpoint absolutism'—not dissimilar from

well-known theories of 'free speech absolutism', but aimed at overcoming some

of the difficulties the latter phrase can create. Secondly, I shall propose a'coherence

theory' as an alternative to the more familiar theories that have traditionally been

used to defend free speech, such as classical liberal, republican or consequentialist

(eg, marketplace or peacekeeping) theories. I shall argue that Western European

hate speech bans involve deep contradictions that promote hypocrisy, discrimina

tion and disrespect for the rule of law. Those contradictions are not the usual

'penumbral' indeterminacies surrounding an otherwise straightforward 'core' of

dear and coherent norms. Rather, at their very heart, hate speech bans, despite

their task of strengthening equality, tolerance or democratic citizenship, do much

to undermine those values. More importantly, there is no way they can be re-writ

ten so as to eliminate or avoid those defects. I'll concede from the outset that abo

lition of hate speech bans in Western Europe, although fully feasible, is unlikely to

occur any time soon. Many governments would hesitate before adopting contro

versial positions on norms that are now well established in international and Eur

opean human rights law, particularly when they are likely to see little political

advantage in doing so. Nevertheless, if hate speech bans are to remain, we should

understand their defects.

Why focus on Western Europe? Crucial to hate speech is its actual or perceived

relationship to action, possibly violent action. A state's ability to prevent or com

bat violence may depend on its relative stability, wealth and democratic traditions.

This article will be limited to sufficiently stable, prosperous states, whose demo

cratic institutions have endured long enough to become widely assimilated

within everyday attitudes and practices. Yes, criteria like 'stable', 'prosperous',

'assimilated', 'attitudes', 'practices' and indeed 'democracy' are hardly clear in all

cases. For purposes of this article, however, I shall assume that Western European

states generally fulfil them. I shall argue that it is incompatible with such democ

racies that the state should-coercively silence ideas that are, in COM-COE's words,

'based on intolerance'. Western European states dispose of ample non-coercive

means of combating intolerance, without having to commit the injustices that, I

shall argue, arise under hate speech bans. By extension, my arguments could also

be said to apply to other sufficiently strong democracies, such as those of Australia,

Canada, Japan, New Zealand, or at least some Africa, Asian, Eastern European or

©The Modern Law Review Limited 2006

(2006) 69(4) MLR 543-582 545


Latin American states. However, as Western Europe already provides a fair sam

pling of liberal democratic practice outside the US, I shall limit my analysis to

Western Europe.

In the first section, I briefly discuss theories used to defend and oppose hate

speech bans, and propose a coherence theory. In the second section, I examine

norms and definitions governing the regulation of hate speech. I argue that they

entail a deeply arbitrary and discriminatory character that cannot be corrected

through re-drafting or interpretation. I then argue that the contrast between

American and Western European approaches can be understood in terms of a

broader distinction between the political and social values ofl'etat liberal and Vital

social. In the third part, I review various objections to hate speech prohibitions,

and their resolution under a model ofl'etat liberal. In the fourth section, I argue that

those objections hold equally, if not more persuasively, for Western Europe, but

that well-established values o£l'etat social provide ample alternatives to hate speech

bans.

SOME BACKGROUND THEORIES OF FREE SPEECH

In this article, the prevailing, prohibitionist norms will be contrasted with a thesis

that I shall call 'viewpoint absolutism'. I shall begin by explaining that concept

and noting some of the theories that have been used to justify protecting or ban

ning hate speech.

Viewpoint absolutism

We can start with both a'positive' and a'negative' definition of viewpoint absolut

ism. The differences are essentially linguistic, as the two are functionally inter

changeable. Under the positive definition, viewpoint absolutism is (i) protection

of speech or assembly that (ii) expresses any ideas, including those deemed to be,

in themselves, iniquitous or dangerous, including racist, sexist, homophobic, anti-

religious, extremist religious, and other such forms of speech deemed to be intol

erant. Under the negative definition, viewpoint absolutism is (i) rejection of prohibi

tions on speech or assembly that are (ii) imposed solely because the state deems

some ideas in themselves to be iniquitous or dangerous, including those same

types of speech.

The positive formulation emphasizes the inclusion of hate speech within an

individual right to free speech. It would generally suit courts exercising judicial

review. The positive formulation tells such bodies what they must do - that they

must affirmatively protect rights of speech and assembly from hate speech bans.

Of course, the negative formulation is by no means inappropriate for such bodies,

insofar as the protection of speech and assembly would require rejection of hate

speech bans. Meanwhile, the negative formulation may particularly suit legisla

tive, executive or administrative bodies. It emphasizes what they must not do -

the kinds of laws and practices they must not adopt In many instances, as long

as they do not do certain things, that will be all that is required of them to protect

free speech. (However, if the elimination of hate speech bans were to impose

546 © The Modem Law Review Limited 2006

(2006) 69(4) MLR 543-582

Eric Heinze

affirmative obligations on states, such as a duty to provide reasonable protection of

otherwise lawful demonstrations, regardless of their viewpoints, the positive for

mulation would apply to those bodies in that respect.13)

On the theory of viewpoint absolutism that I shall adopt, a mature, stable and

prosperous democracy cannot legitimately ban the expression of a general opi

nion in favour of, eg, racist theory, sexism, al-Qaida, blasphemy or homophobia,

on the grounds that such ideas are inherently dangerous (or, in the case of Holo

caust denial, on the grounds that they are factually false). I shall argue in the third

section that a ban or penalty is permissible only (a) during a legitimately declared

state of emergency, or (b) if government can materially demonstrate either (i) the

commission of some independently illegal act, such as a murder or battery, or (ii)

the likelihood of imminent lawless action. Although terms like 'materially',

'demonstrate', 'likelihood' or 'imminent' are not always clear, that is a problem in

law generally, and not unique to hate speech. Accordingly, I shall argue that any

indeterminacy caused by the viewpoint absolutist standard is far smaller than the

pervasive arbitrariness caused by hate speech bans: hate speech bans insert vast

amounts of added uncertainty into law, while viewpoint absolutism adds no

more than is already in the law.

I shall refer to jurists who have taken a similar position as Viewpoint absolu

tists', even if they have not used such a phrase themselves. Of course, questions

will arise as to what constitutes a 'general viewpoint'. For the statement 'I hate red

heads', it is debatable whether any broader 'viewpoint' is being expressed. On that

point too, then, I shall not argue that a viewpoint absolutist position eliminates all

vagueness, but, again, that any indeterminacy within viewpoint absolutism is far

smaller than that created by hate speech bans. We shall see that the indeterminacies

generated by viewpoint absolutism are rare and marginal. Those generated by

hate speech bans are constant and intractable. Hard cases, then, can certainly arise.

However, I shall argue that, under current law, there are so many easy cases - so

many cases where Western European governments would in no way deny that

they are punishing only the expression of a general viewpoint, without even

alleging any likelihood of any otherwise lawless conduct — that attention must

first be directed towards those obvious cases before the hard ones can be examined

meaningfully.

In order to understand the concepts of 'viewpoint', and Viewpoint absolutism',

they must be distinguished from related concepts. The phrase 'free speech absolut

ism' is sometimes used to characterize the stance I have described.14 That phrase,

however, can cause confusion. Taken literally, it would suggest absolute freedom

for all speech, including, say, through a megaphone in a residential neighbour

hood at 3.00 am. That position is not seriously advocated by anyone; and once

so-called free speech absolutists acknowledge legitimate restrictions, it becomes

unclear how, exactly, they could call themselves 'absolutists'. Those whom I am

calling viewpoint absolutists generally accept otherwise legitimate restrictions

13 Cf section headed Free Speech in Vetat liberal, infra. Cf. also, eg, Plattform 'Artztejur das Leben'v Aus

tria, Judgment of 21 June 1988, Ser A, vol 139.

14 See, eg, R. Delgado, 'About Your Masthead: A Preliminary Inquiry into the Compatibility of

Civil Rights and Civil Liberties' in (2004) 39 Harvard Civil Rights-Civil Liberties L Rev 1,5.

©TheModem Law Review Limited 2006

(2006) 69(4) MLR 543-582 547


that are imposed regardless of the viewpoint they express (cf. Section headed Free

Speech in Vetat liberal, infra).

By extension, I shall favour the phrase'viewpoint absolutism' over, say,'content

absolutism'.15! shall understand the content of an expressed idea — say, an idea in

praise of Marxism or al-Qaida — to be potentially limitless: it might include, say,

treason or a full-blown criminal conspiracy, which, even for ardent defenders of

speech, could legitimately be outlawed.16 By contrast, I shall limit the concept of

viewpoint to more-or-less general opinions, such as praise for the overall religious

or political beliefs or activities that are professed by, or associated with, Marxists,

al-Qaida or Holocaust deniers.For a viewpoint absolutist, then, it may be legiti

mate to penalize the expression of ideas for their otherwise illegal content (eg, treason,

inclusion of a criminal conspiracy, defamation, etc); however, absent a legiti

mately declared state of emergency or the demonstrable likelihood of imminent

lawless action, it would never be legitimate for a mature, stable, prosperous democracy to

penalize the expression of an idea as undesirable or dangerous in itself- to punish

it solely because of the viewpoint it expresses (see Section headed Free Speech in

tetat liberal, infra)

Defences of hate speech bans

Hate speech in the Weimar Republic mobilized public opinion with genocidal

consequences. Advocates of hate speech bans frequently cite that danger as evi

dence that democracies are not immune from the dangers of hate speech. How

ever, by holding up the transition of "Weimar Germany into fascism as an example

of freedom run amok, we risk promoting a superficial and revisionist history,

according to which Nazism came about as a result of 'too much' freedom.17 That

view has pernicious ramifications for Western Europe today. It is why, in this arti

cle, my focus is on stable, prosperous and longstanding democracies. The Weimar

Republic did indeed have democratic institutions, but they were recent develop

ments. As to the intelligentsia, we would be mistaken to believe that all were fol

lowing in the Enlightenment-humanist footsteps of Kant, Goethe, Schiller or

Heine. By the early twentieth century, Germany had become notorious for anti-

liberal, anti-democratic figures such as Marx, Wagner, Nietzsche or Schmitt.

More importantly, as to the German population at large, it had never been raised

in generations-old habits and traditions of open and candid dissent, debate and

political participation. Hate speech succeeded because it was pitched to a popula

tion largely unfamiliar with the attitudes and practices of rights-based democracy

(a point often overlooked by scholars who focus too narrowly on organizational,

institutional and party politics).18

15 Cf, eg, Virginia v Black 538 US 343 (2003) (distinguishing between 'content' and 'viewpoint'). 16 See text accompanying n 127 infra.

17 Cf, eg, Krctzmcr, above n 4, at 464; M. Matsuda, 'Public Response to Racist Speech: Considering

the Victim's Story' in M. Matsuda etal (eds), Words thatWoundU, 27 (Boulder, Colo:Westvicw Press,

1993) [hereinafter Words].

18 Sec, eg, the various approaches adopted in N. Gregor (ed), Nazism (Oxford: OUP, 2000) 95-108.


(2006) 69(4) MLR 543-582

Eric Heinze

Weimar Germany did not emerge within today's 'Council of Europe' world, of

mutually reinforcing European democracies that initiate their populations from

the youngest ages into a culture of individual civil and political rights. It arose in

the dying days of a 'Concert of Europe' world, in which a rigorous culture of

individual rights and liberties stood more as an ideal nurtured by intellectuals

than the reality of the workaday world. Despite familiar myths of age-old Wes

tern individual rights 'traditions' (myths which confuse popular consciousness

with what was still the rather rarefied intellectual patrimony of figures like Mil

ton, Locke, Kant, Mill and some assorted French revolutionaries), mass cultures of

individual rights in Western Europe are largely a post-WWII phenomenon. The

problem with Weimar Germany*(like, more recently, the disintegrating Yugosla

via and the dangerous use of nationalist rhetoric there19) was not that it had too

much freedom, but that it had too little history and practice of it.20

In addition to that appeal to European history, there have been other defences

of hate speech bans, which I shall address in turn throughout the article as specific

cases are examined. Briefly, they are as follows. First, hate speech bans are com

monly advocated as means for protecting historically oppressed minorities21 (some times, by implication, portraying viewpoint absolutists as collaborators in the

oppressive power structures spawned by unbridled liberalism).22 In this article, how

ever, we shall see the European Court of Human Rights upholding bans that pro

tect large, dominant majorities to the detriment of minority, dissenting voices. We

shall also see actual or proposed bans newly directed towards Muslim minorities.23

Secondly, it is sometimes argued that free speech advocates assume an artificial

distinction between speech and conduct, thereby failing to appreciate that speech

causes a kind of violence on par with violent action. I shall argue that such a posi

tion does indeed apply to the kinds of face-to-face interactions that free speech

advocates, and US First Amendment principles, rarely defend anyway, but do

not plausibly apply to statements of more general viewpoints.

Thirdly, whatever may be the defects of hate speech bans, it can be argued that

law must express fundamental moral values. On that view, the history of fascism,

colonialism, racism, sexism, homophobia and other forms of intolerance in Eur

ope is too horrific to be overlooked merely because some norms may prove uncer

tain in their applications. That would indeed be a strong point if the uncertainty

was essentially, in Hart's terms,'penumbral' - if hate speech bans formed a gener

ally coherent set of norms, with nothing more than the occasional hard cases aris

ing at the periphery. A review of cases, however, will demonstrate that hate speech

bans are not merely dubious at their outer limits. They are shot through to the core

19 Cf, eg, L. Palmer, 'A Very Clear and Present Danger: Hate Speech, Media Reform, and Post-

Conflict Democratization in Kosovo' (2001) 26 \hlejoumal of International Law179.

20 See, eg, A. Kaufmann,'National Socialism and German Jurisprudence from 1933 to 194' (1988) 9

Cardozo L Rev 1629,1631-33.

21 See, eg, Words, above n 17.

22 See, eg, Delgado, above n 14,8.

23 Both of those phenomena run contrary to the claims of leading hate speech prohibitionists. See,

eg, Stefancic and Delgado, above n 4,742 (denying danger of bans being abused to protect majo

rities against minorities).

©The Modem Law Review Limited 2006

(2006) 69(4) MLR 543-582 549


with contradictions which, far from expressing moral values, result in contempt

for them. Nor can they be re-drafted to avoid that result

In the case of Holocaust denial, bans are defended in slightly different ways.

Holocaust denial is currently a crime in several European states, including Austria,

France and Germany. Notable cases have included the 'AuschuHtzluge' (Auschwitz

lie') case decided by the German Constitutional Court24 (Bundesvafassungsgericht)

and the case ofFaurisson v France decided by the UN Human Rights Committee.25

Article 5(1) of the German Grundgesetz (Basic Law) protects not freedom of

speech as such, but rather freedom of opinion, guaranteeing to all citizens the

right cto express and to disseminate' their opinions.26 In the Auschuntzluge case,

the Bundesverfassungsgericht therefore distinguished allegations of historical facts

from expressions of opinion. The Court conceded that distinctions between fact

and opinion can be difficult to draw, as 'both are often bound to each other and

only jointly constitute a statement's meaning'.27 Overwhelming evidence, how

ever, proved the factual truth of Holocaust,28 and,'strictly construed, statements of

fact are not statements of opinion'.29 The problem with that reasoning is that

countless factual assertions are supported by overwhelming evidence. It would

be the very essence of totalitarianism for governments to punish contrary asser

tions. Germany certainly does not punish speakers for asserting that Stalin, Mao

or Pol Pot never perpetrated mass murders, or that Europeans committed no atro

cities in their colonies, or never conducted any significant slave trade, or never

tolerated abuse of women, children or homosexuals; or, for that matter, that water

does not include hydrogen, that Martin Luther was aTaoist, that Napoleon was

not defeated at Waterloo, and so on.

What the Court presumably hopes to suggest is that (i) false or dubious allega

tions may legitimately be penalized (ii) when they concern an event of excep

tional evil (iii) to which their nation stands in a distinct relationship.30 However,

assessments of 'evil' and 'distinct relationship' are not facts. They are interpreta

tions. They are viewpoints. It is fallacious for the Court (a) to begin by distin

guishing a class of speech called 'factual allegations' from a class called 'opinions',

then (b) to assert that a subset of that class of 'factual allegations' can legitimately

be prohibited, then (c) to define that subset as characterized by an undesirable

opinion. Step (c) collapses the distinction between 'fact' and 'opinion' that is

the sole foundation for step (a). To punish Holocaust denial is to punish factual

24 BVcrfG90,241(1994).

25 Robert Faurisson v France, Communication No 550/1993, UN Doc CCPR/C/58/D/550/1993 (1996). 26 Art 5(1) provides in part, 'Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu

aufiern und zu verbreiten..."

27 BVerfG 90, 241, 248 ('... beide haufig miteinander verbunden werden und erst gcmcinsam den

Sinn eincr Aucrung ausmachen - my translation). Distinctions among such terms as 'fact','theory'

and 'opinion' have raised classic and notorious difficulties in theories of knowledge. Karl Popper

was particularly concerned about the status and abuse of knowledge claims, particularly by tota

litarian rcgimes.Sec, eg, K. Popper, Logik der Forschung (Tubingen: Mohr/Siebeck, 10th cd, 1994,

originally published 1935)

28 B VerfG 90,241,249.

29 ibid 247 (Tatsachenbehauptungen sind ... im strengen Sinn keinc Mcinungsaucrungcn' - my

translation).

30 Cf, eg, E. Stein,'History against Free Speech:The New German Law against the Auschwitz- and

Other - Lies' (1986) 85 Michigan Law Review 277.

550 © The Modern Law Review Limited 2006

(2006) 69(4) MLR 543-582

Eric Heinze

allegations based on their evil viewpoints—precisely contrary to the protection of

'opinion' under the Basic Law—and not merely because they are factually false or

dubious, which would justify banning countless false or dubious assertions of fact.

An alternative justification for punishing Holocaust denial has been based on a

theory of group defamation (a concept which I shall examine further in the third

section below), hi 1980, the Bundesgerichtshqf(German Federal Court of Justice or

Supreme Court) examined a complaint against an individual who, albeit not

denying the Holocaust, argued that it was exaggerated and had in fact claimed

far fewer victims (one might say, Auschwitzverharmlosung). As that view involved

only a partial factual denial, it would have been harder for a court to find outright

falsification. Instead, the Court found that the false factual allegations damaged

the reputation of survivors or their relatives who had asserted the existence of

the death camps.31 Yet that approach suffers defects of its own. As a practical mat

ter, it becomes increasingly weak as the generation of survivors and their near

relatives recede into history. As a matter of principle, it defeats the very grounds

commonly alleged for punishing Holocaust denial, namely that the Shoah was

not merely an evil relative to its victims, which would die with them, but an evil

to all of humanity, which must live forever in our memories. More generally, if

the effects of Holocaust denial are construed beyond immediately concerned indi

viduals and extended to cover Jews as a people in perpetuity, two problems

emerge. Either the act of denial loses the requirement of a specific showing of

damage to individual reputation that justifies traditional defamation actions, and

merely falls prey to the same distinction between fact and opinion that the Court

in theAuschwitzluge case had applied; or, insofar as full or partial Holocaust denial

is construed more generally as anti-Semitism, such an approach turns punishment

of denial into a standard hate speech ban.

The latter approach was adopted in Faurisson, where a group defamation ratio

nale was adopted to combat Holocaust denial,32 though only in part The French

government also argued that Holocaust denial was tantamount to an anti-Semitic

utterance, and thus comparable to racist and similarly proscribed statements. As a

matter of moral principle, the French government is unquestionably right to take

that position; for example, recent statements of the Iranian president Mahmoud

Ahmadinejad denying the Holocaust and calling for the state of Israel to be

'wiped off the face of the Earth'33 vividly illustrate the persistent and complex

links between Holocaust denial, anti-Zionism and anti-Semitism. Once again, how

ever, that approach merely converts Holocaust denial into more typical hate speech,

subject to the general defects of such bans, as discussed in the second section infra.

Dominant public, press and scholarly opinion is commonly cited in these cases

to elicit the marginal,34 even pariah35 status of Holocaust deniers, who are con

stantly pilloried by historians, politicians, the media, and the public generally,

31 Entsdieidungen do Bundcsgcrichtshofcs in Zivilsachen (BGHZ) 75,160. On the recent controversy

surrounding David Irving, see, eg, reports and comment inTheTimes, 21 Feb 2006,1-2,6-7,17.

32 Faurisson, Communication No 550/1993, paras 9.5-9.7.

33 Cf, eg, 'Vague d'indignation apres les propos du president iranien' Le Monde 29 Oct 2005, 3;

S.Tisdall, 'World Briefing' The Guardian 28 Oct 2005,17.

34 See,eg,BVcrfG90,241,249.

35 See, eg, Faurisson, Communication No 550/1993, para 22


(2006) 69(4) MLR 543-582 551


even without the State having to resort to coercive means. Remarkably, however,

the various courts and the Human Rights Committee have never considered

whether bans are necessary at all in such a hostile social and intellectual environ

ment. Of course, their reasons for not examining such an argument can only be

speculative; presumably, however, their fear is that, unchecked, Holocaust denial

could insidiously corrupt public opinion.36 Yet that fear recapitulates the fallacy of

projecting the 'too much freedom' image of the Weimar Republic onto today's

democracies. Even the suggestion that revisionists have made some—very lim

ited—inroads into 'respectable' academic debate37 hardly demonstrates the West's

inexorable march towards fascism. Although dominant public opinion in the

United States undoubtedly merits criticism on many points, and the nation is

far from free of prejudice and discrimination, the opinions of the Ku Klux Klan

and similar extremist groups have remained marginal since the civil rights move

ments of the 1960s, ie, throughout the entire period in which current First

Amendment principles have been in place. (Indeed, the mass hysteria of

McCarthyism marked the final period of American history in which speech was

regulated on the basis of viewpoint.)38 The presence of black figures in American

media has constantly grown, and many American universities offer courses and

whole degree programmes on African-American studies. Certainly, racism still

continues. However, there is no evidence that Western Europe has more effec

tively combated intolerance with hate speech bans than the US has done without

them.

As a practical matter, bans on Holocaust denial provide, as Christopher Cald-

well notes,'a bonanza of easy publicity for extremists who can present themselves

as bold, censor-defying non-conformists, merely by brushing up to the law, with

out quite breaking it. [...] In France, the National Front leader Jean-Marie LePeris

most reliable route on to the evening news is to stage some ... outrage, such as

calling the Holocaust "a detail of history".' Caldwell notes that 'Muslim and

human rights groups have brought complaints and suits against the novelist

Michel Houellebecq, the journalist Oriana Fallaci, the philosopher Alain Fin-

kielkraut and (for printing cartoons of Mohammed) the satirical newspaper Char

lie Hebdo'. Similarly, 'in 1995, Bernard Lewis—probably the most important

scholar of Turkey in the past century—was condemned in a French court for

refusing to apply the term "genocide" to the Armenian massacres.'39

Defences of free speech

Over the years, a variety of theories have emerged to support some version of view

point absolutism. They cannot be examined extensively here, and have received

attention elsewhere.401 shall mention them briefly, only to situate my own approach.

36 Cf, eg, ibid, paras 7.3,7.10,7.13 (referring to public order and morals). 37 See, eg, Stein, above n 30, at 280. 38 Cf., eg, Dennis v United States, 341 US 494 (1951). 39 C Caldwell, 'Historical Truth Speaks for Itself Financial Times, 18 Feb 2006,9. 40 See, eg, C E. Baker, Human Liberty and Freedom of Speech (New York: OUP, 1989) chs 1-5;

K. Greenawalt, Speech, Crime and the Uses of Language (Oxford: Oxford University Press, 1989) ch 2.

552 ©The Modern Law Review Limited 2006

(2006) 69(4) MLR 543-582

Eric Heinze

Marketplace Theories

Writers as far back as Milton and Mill have proposed some version of a market

place theory, arguing that the best (most truthful, most persuasive) ideas are those

that survive the unrelenting pressures of open debate—the 'marketplace of ideas'.

Ignorant ideas, unable to withstand rigorous scrutiny, need not be prohibited

They will perish under scrutiny. Marketplace theories, then, justify free speech

not as a good in itself, but as a means to the end of generating the ideas most

beneficial to society. They are consequentialist (or instrumentalist), and therefore

suffer the usual defects of consequentialism: they justify free speech precisely

insofar as it leads to truth. If truth could be found as well or better through limita

tions on speech, then presumably those limitations would turn out to be

justified. Indeed, prohibitionists commonly claim that hate speech contributes

so little to truth, and can do so much damage, that its harms easily outweigh its

benefits.41

Peacekeeping

The promise of liberal democracy is to provide an arena for differences and hosti

lities to be aired peacefully, allowing people to blow offsteam without recourse to

physical violence. That approach has some merit, but is also consequentialist. If, in

theory, it could be shown that peace can be better kept without hate speech, then

the bans would be justified. (Still, in practice, it is doubtful whether such a show

ing can be made, as an empirical matter, within stable, prosperous, longstanding

"Western democracies.42)

Deontological Theories

Some writers seek to overcome the shortfalls of consequentialism by arguing that

free expression is not merely a means to an end, but is a good in itself, a freedom

presupposed by the concept of autonomous citizenship. Kant formulates the

most detailed of classical deontological defences of individual liberties, al

though even Mill's reformulation of utilitarianism posits 'higher goods', including

expressive and communicative activities, beyond Bentham's materialist notions of

pain and pleasure. Along with Mill's harm principle, Kant's theories of freedom

and the categorical imperative all formulate concepts of individual liberties that

have provided powerful foundations for liberalism up to the present day. The pro

blem is that liberals need to set limits to rights, and the principles invoked by Kant

and Mill to do so sometimes amount to little more than codifications of mores of

their own societies (recall Kant's absolutist defence of the death penalty or Mill's

restrictive sexual morality) providing questionable foundations for liberals

today. (Nor is it dear that more recent formulations, such as those of Rawls or

Dworkin, can provide universally acknowledged grounds for eliminating hate

speech bans.)

41 See generally, eg, Matsuda et at, n 21 above. But see, eg, N. Strossen, 'Regulating Racist Speech on

Campus: A Modest Proposal' 1990 Duke Law Journal 484,547-549.

42 See section headed Speech and Conduct, infra.

© The Modern Law Review Limited 2006

(2006) 69(4) MLR 543-582 553


Civic Republicanism

Insofar as I shall adopt one of the standard defences of free speech, my approach

embraces some version of civic republicanism43, whereby open and candid

exchange is not merely a right, but, above all, a duty in a democratic society.44

On that view, it is vital—however disagreeable—in a democratic society for us

to know what our fellow citizens think45 and to develop our own capacities for

critical response. We cannot know what others think when government silences

them. Critical thinking comes from individual and collective practice, not from

government diktat. It comes from a social ethos of unrelentingly critical public

discourse, rather than state-directed coercion. The aim of eliminating hate speech

bans is not to create a moral vacuum. It is to promote a citizenry that cultivates its

own moral vigilance.

Admittedly, a theory of civic republicanism need not perforce require the elim

ination of hate speech bans. Eighteenth century republican theorists, for example,

did not invariably advocate abolishing blasphemy laws. Nevertheless, at least one

plausible version of civic republicanism would require that freedom of peaceful

expression, however odious the content, must be an incident of citizenship itself46

Although much recent theory of civic republicanism has been developed by US

constitutional theorists, its ideals have a strong European vintage. Diderot's La

Religieuse47 portrays abuse and sexual harassment within religious orders, expres

sing the most rigorous traditions of headstrong dissent from religious values and

practices. A ban was imposed in France on the film version in 1966—repealed a

year later,48 but only amid great controversy. As we shall see, works appearing

today, with similarly provocative content, are banned in Europe with the impri

matur of the European Court of Human Rights. For the viewpoint absolutist,

ignorance and intolerance are best kept in check when citizens remain free to

make up their own minds about what to say, hear and believe, and to respond

through the many means available in an open society—dissent, debate, persua

sion, satire, argument, demonstration, protest or boycott. When channels of com

munication are used to propagate hatred, all citizens in a democratic society must

be free to know who the speakers are, where they are, what they preach, and to

whom.

43 See, eg, C Sunstein,'Beyond the Republican Revival' (1988) 97 Yale LawJomnal\S&.

44 See, eg, R. Post,'Racist Speech, Democracy, and the First Amendment* (1990-1991) 32 William

and Mary Law Review 267; J. Weinstein, 'Hate Speech, Viewpoint Neutrality, and the American

Concept of Democracy' in T. R. Hcnsley (ed), The Boundaries of Freedom of Expression and Order in

American Democracy (Kent OH: Kent State University Press, 2001) 146 [hereinafter 'Viewpoint

Neutrality'); J. Weinstcin, Hate Speech, Pornography and the Radical Attack on Free Speech Doctrine

(Boulder, Co: Westview, 1999). Sec also, eg, Strossen, above n 41; C R. Calleros, 'Paternalism,

Counterspcech, and Campus Hate-Speech Codes: A Reply to Delgado and Yun' (1995) 27 Arizona

State Lawjourtuxl 1249.

45 Note that I do not propose a right to know who a hate speaker is. I simply argue against there

being impediments to my acquiring that information, imposed by the state on grounds of the

speaker's viewpoint.

46 Louis Brandeis provides a classic statement, albeit one which also accords a role to classical liberal

and marketplace theories. Whitney v California 274 US 357,374-76 (1927) (Brandeis, J concurring).

47 See, eg, Denis Diderot, La Religieuse (Paris: GF Flammarion, Roland Desne cd, 1968).

48 See 'Chronologic' in ibid, 5,13.


(2006) 69(4) MLR 543-582

Eric Heinze

A CoherenceTkeory

My primary tool in this article, however, will be a coherence theory. I shall argue

that some works are prohibited while similar or worse works are permitted;

again, those contradictions cannot be remedied through better drafting or inter

pretation. Coherence approaches have received less attention than the foregoing

ones. That is probably because much of the theoretical hate speech literature has

come from America, where, because of First Amendment principles, the actual

application of more recent kinds of hate speech bans has barely been tested. A

Western European scholar examining the copious American scholarship must

be baffled to discover that much of it concerns not federal, state or even local

law, but codes of conduct adopted or proposed for university campuses.49 Insofar

as American prohibitionists have struggled even for the most minimal codes to be

enacted into federal, state or local law—some, for example, suggesting that even

codes punishing only racist speech would be a good start50—any broader ques

tions of coherence as positive law can scarcely have arisen. American writers do

sometimes acknowledge possible inconsistencies of hate speech bans, but those

discussions have a remarkably marginal and speculative quality. American prohi

bitionists do occasionally cite European or other non-American practice as evi

dence in favour of their position51; however, American viewpoint absolutists

have not examined the defects of the European experience in order to support

the US First Amendment approach.

By contrast, all "Western European jurisdictions adopt the background pre

sumption that at least some speech is sufficiently dangerous or offensive for no

reason other than the viewpoint it expresses, even without the slightest allegation

of independent illegal activity. As a result, hate speech bans are alive, well, widely

supported, have been actively used, and have generated sufficient case law to allow

an examination of their applications in specific cases. Accordingly, an examination

of hate speech bans as positive law is in order, and I shall propose a coherence

theory as particularly appropriate for that task. In examining the contradictions

generated by hate speech norms, I shall argue that they inevitably create two tiers

of citizens—those who are protected from offensive speech, and those left unpro

tected from equally offensive speech. The bans purport to combat discrimination,

but tacitly promote it. An affirmative action rationale cannot justify the bans

since, as we shall see, if they equalize' conditions at all, they do so in far too ran

dom and arbitrary ways. That violation of basic precepts of coherence might suf

fice to justify the elimination of hate speech bans, without requiring any further

recourse to broader free speech theories. However, the separation into two tiers of

citizenship also undermines the assumption of unfettered participation required

by the theory of civic republicanism.

One objection to my coherence theory might be that it applies not to any par

ticular hate speech ban, but to all bans as such, rendering arbitrary the focus on

"Western democracies. I shall indeed suggest that bans are inherently incoherent

49 See also, eg, Strossen, above n 41; Calleros, above n 44; C R., Lawrence,'If He Hollers Let Him

Go: Regulating Racist Speech on Campus' (1990) Duke Law Journal 431,452-453.

50 C£ text accompanying n 93-94 m/ra.

51 See Hcinze, above n 12. Cf Stefancic and Delgado, above n 4.


(2006) 69(4) MLR 543-582 555


However, weaker democracies must often manage any number of serious incon

sistencies in their human rights law, the elimination of which may need to be

subordinated to an overriding interest in fundamental social, political or eco

nomic stability. By contrast, mature, stable and prosperous democracies rarely

have any such excuse. As to non-democracies, the very concept of human rights

is likely to be either non-existent, parodic or highly specific to the regime, such

that few useful generalizations can be made about the extent and limits of free

speech.

CURRENT LAW

National laws governing hate speech in Western Europe vary from state to state,

reflecting each state's history and demography. International and European norms,

although shared, are subject to local conditions and applications. One obvious

approach, then, would be to examine bans within one or more specified Eur

opean state or states, using an empirical and comparative methodology. However,

essentially national studies might fail to provide a clear sense of more general Wes

tern European trends (unless they covered a wide range of states; and even then I

doubt that their core findings would or could differ much from those I shall pro

pose). Moreover, advocates of hate speech bans have rightly shown that meaning

ful generalizations can be made at international and regional levels.52 I shall

assume the same. Accordingly, my interest is not in the precise formulation, scope

or implementation of given norms within given states, but with a more general

pattern within Western Europe. The aim of this analysis is not to apply precisely to

any one Western European state, but to apply sufficiently to all of them.

It might be objected that such an approach turns the relevant supervisory

bodies, such as organs of the Council of Europe or the UN Human Rights Com

mittee or Committee on the Elimination of Racial Discrimination, into straw

men. After all, they can only assume limited, advisory or (in the case of the Eur

opean Court) reactive stances. They cannot engineer national legal systems to

achieve thoroughgoing unity in any area of human rights, so my findings of inco

herence would come as no surprise. That objection would stand if my coherence

theory were a critique of institutional failures. But it is not. My aim is not to

challenge specific interpretations or applications of hate speech bans, but to chal

lenge the very idea of them, as a matter of principle. I invoke a pattern of incon

sistencies throughout Western Europe not to suggest that better practice could

iron them out, but to suggest that they cannot be ironed out under any imagin

able regime—international, regional, national or local.

Norms and definitions

The injunction of ICCPR article 20(2) is confirmed in other international instru

ments and institutions to which Western European states are parties. For example,

52 See, eg, Boyle, above n 4; Stefancic and Delgado, above n 4.


(2006) 69(4) MLR 543-582

Eric Heinze

article 4 of the International Convention on the Elimination of All Forms of

Racial Discrimination53 (CERD) provides that States Parties:

(a) Shall declare an offence punishable by law all dissemination of ideas based on

racial superiority or hatred, incitement to racial discrimination, as well as all acts of

violence or incitement to such acts against any race or group of persons of another

colour of ethnic origin...

(b) Shall declare illegal and prohibit organizations, and also organized and all other

propaganda activities, which promote and incite racial discrimination, and shall

recognize participation in such organizations or activities as an offence punishable

by law.

The UN Committee on the Elimination of Racial Discrimination (UN-

CERD), which has primary (albeit non-binding) supervisory responsibility over

the treaty's interpretation and implementation, advocates expansive interpreta

tions of article 4.54 That approach is adopted in the Council of Europe not only

through the aforementioned COM-COE principle, but also through pronounce

ments of the more specialized European Commission against Racism and Intol

erance (ECRI).55 In view of recent terrorist attacks with both racial and religious dimensions, Western European states are now poised to impose ever greater

restrictions on speech, expression or assembly under the mantle of hate speech

bans56 (however, I shall not examine responses to terrorism as such, as the law is

still in flux, and clearer patterns may take a few years to emerge).

Hate speech bans protecting religion are also enforced in at least some states

and at the European level.57 In Otto-Preminger-Institut v Austria,58 in response to

53 660 UNTS195, entered into force 4 Jan 1969.

54 See eg, Committee on the Elimination of Racial Discrimination, General Recommendation 7,

Measures to Eradicate Incitement to or Acts of Discrimination (Thirty-second, 1985), UN Doc A/

40/18 at 120 (1985), reprinted in Compilation of General Comments and General Recommenda

tions Adopted by Human Rights Treaty Bodies, UN Doc HRI\GEN\l\Rev 6 at 199 (2003).

55 See, eg, ECRI General Policy Recommendation No 1: Combating racism, xenophobia, anti-

semitism and intolerance, adopted on 4 October 1996; ECRI general policy recommendation

No 7 on national legislation to combat racism and racial discrimination, adopted on 13 Dec

2002; European Commission against Racism and Intolerance (ECRI), General Policy Recom

mendation No 8, adopted on 17 March 2004; ECRI General Policy Recommendation No 9 on

the fight against anti-Semitism, adopted on 25 June 2OO4.See also, eg, Glimmerveen andHagenbeek v

the Netherlands 18 DR (1987); Kuhnen v FRG 56 DR (1988). 56 For Britain, see, eg, Home Office, 'Religious Hate Crime and Discrimination' in Inside the Home

Office, Community and Race, http://www.homcomce.gov.uk/comrace/faith/crime/indcx.html (last

visited 05/04/2006). See also, eg, P. Wintour,'Blair to Root Out Extremism' The Guardian 6 Aug

2005; S. Laville, 'Banned Groups with Roots in UK appeal to Disaffected young Muslims' The

Guardian 6 Aug 2005. For samples of recent tendencies in other European states, see, eg,

for France, C-E. Hafiz et G. Devers, Droit et religion musidntane (Paris: Dalloz 2005); C Pegard,

'Lairite: Les coulisses rfun debat', Le Point.Jr, 29 Jan 2004, http://www.lepoint.fr/dossieroocicte/

document.html?did= 141643 (last visited 05/04/2006); for Germany: 'Deutsch-Islamische Schule

vor dem Aus' 4 Aug 2005, Spiegel Online, http//www.spiegeLdc/politUc/dcutschland/ 0,151836833300.

html (last visited 05/04/2006); ^Gefahrliche Rcgdungslucke?1, Die Wk.de, 21 Mar 2004, http://

www.welLde/data/2005/Q3/21/61413ahtml (last visited 05/04/2006); 'Bosbach fur Ausweisung von Isla-

misterf, Die Wk.de, 2 Dec 2004, http://www.welLde/data/2004/12/02/368852html (last visited 05/04/

2006).

57 See text accompanying note 70 infra.

58 ECtHR, Ser A, No 295-A [1994].

©The Modern Law Review Limited 2006

(2006) 69(4) MLR 543-582 557


complaints of religious intolerance, the European Court of Human Rights

upheld an Austrian ban on the film Das Liebeskonzil {Council in Heaven),59 which

ridiculed central figures of Roman Catholicism—God the Father, Jesus and the

Virgin Mary. To appreciate that case, some background is instructive. Das Liebes

konzil is a filming of an 1895 play by Oscar Panizza. Panizza was known for acridly

satirical writing on political and social themes. He fits comfortably within an era

of German and Austrian artists and intellectuals who were radically challenging

convention, from Nietzsche and Freud to Mahler or Rilke. The play landed

Panizza in prison for a year. Werner Schroeter's 1982 film version was scheduled

for viewing in Innsbruck's Otto-Pretninger-Institut fur audiovisuelle Mediengestaltung

(OPI), a non-commercial, non-profit, art house cinema, known for showing

alternative film. Moreover, the OPI had gone to some lengths to avoid causing

offence. It advertised the film with an explicit warning about the offensive con

tent, and noted a minimum admission age of 17.60 It was unlikely that an unsus

pecting viewer could have viewed the film inadvertendy, nor did the Austrian

authorities make any allegation to that effect. Before the initial screening, the

Innsbruck diocese of the Roman Catholic Church lodged a complaint with local

authorities, prompting them to confiscate the film, prevent its showing, and to

prosecute the OPI manager under national law for 'disparaging religious doc

trines' (Hembwiirdigung religioser Lehren). The European Court upheld the Austrian

response, agreeing that the film perpetrated a 'malicious violation of the spirit of

tolerance'.61

It might be argued that this case in fact has little to do with hate speech. The

Austrian law was a fairly standard blasphemy law of the kind that had been

adopted centuries ago, long before the emergence of contemporary concepts of

hate speech. Moreover, the Court made no mention of, say, ICCPR article 20(2),

finding instead that, in this case, the law fell within the bounds of ECHR article

10(2), which provides that freedom of speech may be restricted or penalized 'for

the protection of... morals.'62 Curiously, however, the original rationale for Eur

opean blasphemy laws—the need to protect the sanctity or authority of Christian

doctrines and institutions—was never mentioned. Quite the contrary. The Court

interpreted ECHR article 9 as protecting 'the religious feelings of believers' from

'provocative portrayals of objects of religious veneration'.63 At no point does the

Court limit the said 'objects' to Christian ones. To do so would appear blatantly

discriminatory. Even if the case makes no express reference to 'hate speech', the

concept of 'provocative portrayals of objects of religious veneration' provides an

important rationale for hate speech bans that include religion. It would have been

easy for us to ignore the Court's decision in Otto-Preminger-Institut on the view that

blasphemy laws are essentially moribund, too weak nowadays to pose real threats

to freedoms of expression. In fact, just the opposite conclusion should be drawn.

Blasphemy laws as such may indeed be moribund, but the Court did not uphold

59 Literally, the title translates as 'Council of Love'.

60 ECtHR.ScrA, No. 295-A, paras. 9-10.

61 ibid, para 47.

62 ibid, para 50.

63 ibid, para 47.


(2006) 69(4) MLR 543-582

einze

the Austrian blasphemy law as such. Not once did it employ the term'blasphemy'

in its reasoning, using it only in its factual summary of the Austrian law and pro

cedures. The Court in effect - in its reasoning - upheld a blasphemy law as a hate

speech law. By converting blasphemy laws into hate speech laws, the Court not

only revives them, but strengthens them when it extends their scope beyond

Christian faiths.

The Court thus upholds bans on a form of expression, religious satire, from

which the very tradition of candid, rigorous debate in Europe had largely

emerged. Dissenting views once counted among the exemplary and hardest won

virtues of democracy. Reconceived as hateful views, they are now prohibited on

grounds of being destructive of democracy. If the Convention requires that 'the

religious feelings of believers' must be protected from 'provocative portrayals of

objects of religious veneration' - and if that is an injunction that "Western Eur

opean governments and Council of Europe institutions are meant to take ser

iously — then it is difficult to understand how a text like La Religieuse can

circulate freely throughout Western Europe. (It might be argued that Diderot

lampoons only convent life and not God or sacred figures as such. But that would

be a distinctly Protestant reading of the facts. For Roman Catholicism, convents

are sanctified for worship of the Divine, by individuals understood to be pursuing

a holy vocation). As to its concept of 'morals', the Court reiterated its familiar

stance that 'it is not possible to discern' a uniform European conception of morals,

and that '[a] certain margin of appreciation is therefore to be left to the national

authorities in assessing the existence and extent of the necessity of such interfer

ence.'64 It thus left utterly undefined any sense of a clear limit to that concept as a constraint on speech.

Despite occasional scholarly grumbling about the Otto-Pmninger-Institut hold

ing, it is no aberration. It was confirmed in Wingrove v United Kingdom?5 where the Court upheld the British Board of Film Classification's (BBFC) refusal, on

grounds of blasphemy, to certify Nigel Wingrove's film Visions of Ecstasy. The

Court deferred to the BBFC's view that the film depicted St Theresa of Avila's

visions of the crucified Christ in an'overtly sexual' way.66 While summarily stat

ing that the margin of appreciation is 'not unlimited',67 the Court provides no

explanation, either in Otto-Preminger-Institut or in Wingrove, of the kinds of limits

that its judicial supervision might require. Indeed, the margin of appreciation is

presumably wide,68 with Court supervision minimal. The Court's invention of an article 9 right lacking any basis in precedent or authority, amounts to full-fledged

judicial activism undertaken not to extend expressly enumerated Convention

rights (where a bolder approach accords with the Court's task of restraining state

action) but to abridge them.

64 ibid, para 50.

65 1996ECtHR60.

66 ibid, para 61.

67 ibid, para 53.

68 R. A. Lawson and H. G. Schermers, Leading Cases of the European Court of Human Rights (Leiden:

Are Aequi Libri, 2nd ed, 1999) 575.Cf. Wingrove [1996] ECHR1937, para 58. Cf also Uhideux and Isorm v France [1998] ECHR 2864 (Foighel, Loizou and Frcedland, JJ, dissenting, at para 4).


(2006) 69(4) MLR 543-582 559


I

The arbitrary and discriminatory effects of hate speech bans

After dedding Otto-Preminger-Institut, the Court issued a decision injersild v Den

mark69 that both deepens the randomness of its approach — all the more so insofar

asjersild was dedded only three days after Otto-Preminger-Institut, thus preduding

any suggestion that circumstances or attitudes might have changed - and strongly

suggests the Court's (and national governments') incompetence in distinguishing

the character of, and the effects of, various genres of documentary, literary, artistic

or other forms of expression.

Jersild concerned Denmark's criminal conviction of a journalist for airing inter

views containing gross radst remarks. The views were expressed by members of a

far-right group called the Greenjackets, and were broadcast on its prime-time

news show Sendagsavisen. The European Court expressly confirmed CERD arti-

de 4 as a binding statement of the obligations of European states parties70, and left no doubt that the remarks in themselves could have justified prosecution.71 How

ever, it upheld the journalist's complaint on the grounds that the programme had

presented the radst views as an item of expository journalism, without endorsing

them. At first glance, it would appear thatjersild can be reasonably reconciled with

Otto-Preminger-Institut. The European Court, despite the two cases' conspicuous

thematic and temporal proximity, makes no effort to recondle them, but suggests

that the Sendagsavisen broadcast passes muster by presenting the radst views as

those of others and not of the journalist, while Das Liebeskonzil fails because it

lacks any such 'distandng' between messenger and message.72

On closer examination, however, that distinction between 'distancing' and

'non-distandng' proves falladous. The Sendagsavisen broadcast never expressly

condemned the radst remarks. It adopted a neutral stance, inviting viewers to

draw their own condusions.73 The Court, then, does not require that the mode

of presentation of radst views serve specifically to reject the intolerant utterances.

It need only suggest some distance between messenger and message; ordinary

viewers must be prompted to a reasonable inference that the message is not neces

sarily shared by the messenger.74 The problem is that the Otto-Preminger-Institut,

in at least three ways, had provided comparable, arguably superior, distancing.

First, its status as a cinema meant that viewen, so to speak, had to go out of their

way to see the film. They had to travel to the OPI and pay an entrance fee, unlike a

television programme which might be switched on casually (indeed, by a vulner

able, eg, ethnic minority, under-aged or highly sensitive) viewer. Second, the

dnema was art house, well known for experimental or alternative film. It invited

a reasonable inference that unconventional or provocative works might be shown,

69 ECcHR,ScrA,No298[1995].

70 ibid, paras 21,28-30.

71 ibid, paras 28-36. Cf Gundiiz vTutkey [2003] ECHR 65Z Sec also'Conclusions and Recommenda

tions of the Committee on the Elimination of Racial Discrimination, Denmark' UN Doc

CERD/C/304/Add.2 (19%) para A3 (suggesting that, notwithstanding the European Court's

judgment, Denmark might have been bound under CERD to prevent or to punish the speech

injersild).

72 ECtHR, Ser A, No 298, paras 28-36.

73 ibid, para 34.

74 CUbid, para 36.


(2006) 69(4) MLR 543-582

Eric Heinze

without any suggestion that all or any films reflect the viewpoint (if such works

even have a Viewpoint') of the OPI—the decisive criterion inJersild. Third, OPI

imposed an age restriction and, more importantly, published express warnings

about the offensive content of the film, precisely the kinds of warnings that were

never issued, and that the European Court found it would have been unnecessary to issue,75

injersild.

There can be no doubt, then, that the OPI provided equal, and probably

greater, distancing between messenger and message than that provided by

S0ndagsavisen. What is the result of the two cases combined? Offence to dominant

Christianity is punished. Offence to racial and ethnic minorities is permitted. But

that formulation would not have looked good. So one might instead distinguish

the two cases by arguing that, in Sendagsavisen, the editorial distancing is 'intrinsic'

to the broadcast (ie, woven into the content of the broadcast), while, in Das Lie-

beskonzil, it is 'extrinsic' to the film (ie, dependent upon the nature of the cinema

and of its separately published warnings).

However, for two reasons, that distinction between intrinsic and extrinsic dis

tancing is as fallacious as the distinction between distancing and non-distancing.

First, let us assume a consequentialist justification for banning hate speech,

namely, that its harm lies in its effects on its audience. If that is the case, then the

mode of distancing—whether it is intrinsic and extrinsic to the work—becomes

irrelevant, as long as there is distancing. Alternatively, let us assume a deontologi-

cal rationale, namely that hate speech should be banned as a matter of principle,

regardless of its effects. On that view, the ban on Das Liebeskonzil is presumably

justified because the work itself (ie, 'intrinsically') aims to offend, while

S0ndagsavisen aims to inform. Yet questions about what a work of art 'aims' to say

are speculative. Literary and artistic critics are rightly cautious about questions of

an artist's intent or an artworks intent, let alone about the relationships between

the two. It is debatable what, for example, Hamlet, Madame Bovary or La Dolce Vita,

or their authors,'aim' to say. A central function of liberal democracy is to leave such

decisions to individual deliberation and not to government. If there is no obvious

way to determine the 'aim' of Das Liebeskonzil, we can talk only about its offensive

effect, which merely leads us back to the consequentialist view.

Of course, even if we accept that governments or the European Court cannot

justify the decisions they have reached in these cases, it might be argued that I still

have not solved all cases that might arise under hate speech bans. For example, the

foregoing criticisms would appear irrelevant, say, to the unmediated remarks of a

racist speaker on a street corner (ie, a case of clear non-distancing of message from

messenger). But that is no objection to my criticisms, as it is not I but the Court,

following the lead of national governments, that has expressly or tacidy adopted

the standard of 'distancing' in the first place, in order to distinguish the work of art

in Otto-Preminger-Institut from the documentary in Jersild. Accordingly, I shall

return to those kinds of unmediated messages later. For now, since art works—

or works by artists—do often ignite debates about free speech (recall The Satanic

Verses or Jerry Springer—the Opera), we should examine them a bit closer. As the

75 ibid, para 34.

© The Modem Law Review Limited 2006

(2006) 69(4) MLR 543-582 561


Court has never suggested an awareness of that its decisions in Otto-Preminger-Insti

tut dindjersild are contradictory, we must assume some legal rule or principle that

reconciles them, which presumably would run as follows: it isjersild that constitu

tes an exception to the rule of Otto-Preminger-Institut Under Otto-Preminger-Institut,

the rule is that all hate speech may, and arguably must (under, eg, CERD and

ICCPR), be banned; under Jersild, the exception is to permit it only with some

form of (what I am disapprovingly calling) 'intrinsic distancing'.

Yet even that rule-and-exception seem subject to variations that are nowhere

articulated, and cannot be articulated without exposing even deeper biases of hate

speech bans. Richard Wagner's words at the head of this article are currently pub

lished in a work replete with critical commentary (ie, intrinsic distancing).76 I

shall assume, however, that no European state could seriously ban the publication

of an essay by Richard Wagner in any customary form (and in any event, readers

can easily overlook the commentary, while avoiding distancing factors in a televi

sion or film is virtually always harder to do), no more than La Religieuse could be

banned. Indeed, I shall assume that it would be outrageous for a state to ban a

work - with or without commentary — which, arguably, more Western Eur

opeans should be reading, as a vital part of our history.

Those assumptions are safe enough to yield a troubling, though unsurprising,

result: Wagner's anti-Semitism can circulate freely, while the European Court of

Human Rights has upheld a ban on Panizza's anti-Christianity. Note, moreover,

that the cited passage is not a plucking of Wagner's views out of context. The

whole of his essay develops the same view and is written in the same tone. That

inconsistency should prompt us to examine more deeply the incoherence of hate

speech bans. Their arbitrary and discriminatory character emerge in two ways:

first, with respect to formally recognized categories, such as race or religion;

and, second, with respect to the distinction between recognized and non-recog

nized categories. Let's examine them in turn.

Recognized Categories.

Rjemaining with that distinction between Panizza and Wagner, how shall we

reconcile those two results? Shall we say that Wagner, like Diderot, counts as a

sufficiently 'towering figure'? Yet international hate speech norms certainly do

not include 'towering figure' exceptions, and it would be difficult to justify tacit

understandings to that effect. The history of Nazi anti-Semitism amply attests that

Wagner, as a towering figure, exercised far greater influence77 than the relatively

unknown Panizza. Considering that Western literature is replete with racism,

anti-Semitism, sexism or homophobia, it is scarcely fathomable (yet apparently

true) that such arrant contradiction's/ never occurred to any of the bodies that have

issued such detailed pronouncements on hate speech, such as UN-CERD, UN-

HRC, COM-COE, ECRI, the European Court of Human Rights or the Eur

opean Parliament, not to mention countless national bodies that have legislated

bans. After all, have their members really never heard of, say, the anti-Semitism

76 See above n 1.

77 Sec, eg, Fischer, above n 1, at 124-133.


(2006) 69(4) MLR. 545-582

Eric Heinze

of Celine, T. S. Eliot, Pound or Herge, or the crude racism of countless films freely

exhibited in Europe, such as the outright venomous Birth of a Nation, or the more

casual racist stereotypes of Gone With the Wind, or the cringingly racist Japanese

caricature in Breakfast atTtffany'st or the insidious homophobia of Hitchcock's Rope,

not to mention an entire canon of literary or artistic works, from Berenice straight

through to Rebecca, Brief Encounter or Le Mepris, depicting women in stereotyped

roles of meekness, dependence or subservience?78 Any suggestion that such lapses

are merely the inevitable'penumbral indeterminacies' of otherwise lucid norms

would be astounding. Panizza andWingrove, through works of art, invite all the

interpretative possibilities of irony or farce. Wagner's essay, by contrast, is in no

sense authored as a literary or parodic work. While Eliot's 'Burbank with a Bae

deker' certainly does count as art, verses like 'The jew is underneath the lot' and

'Chicago Semite Viennese' leave little to the imagination. Panizza derides Chris

tian symbols; as to Wingrove, it is questionable whether he derides even them

(although we must accept that some viewers would see it that way). "Wagner,

Celine, Eliot, Herge and Pound, by contrast, deride not merely Jewish symbols, but Jews themselves.

If we combine ICCPR article 20(2), CERD artide 4, the case law of the Eur

opean Court, the norms and policies embraced by UN-HRC, TJN-CERD,

COM-COE and ECRI, and parallel developments in Western Europe at the

national, regional and local levels, the body of norms requiring and confirming

hate speech bans becomes vast, with, as we can see, an opacity that allows such

random applications, banning some forms of speech, while allowing far more

offensive and historically damaging messages full freedom. Hate speech bans can

not be re-drafted to avoid such results, at least, not without banning massive amounts of artistic, literary and other public or published works.

Since Panizza's and Wingrove's supposedly anti-religious works may appear to

lie at the heart of these contradictions, one might attempt to rescue hate speech

bans by exduding the category of religion. That solution, of course, would con

travene ICCPR artide 20(2). More fundamentally, it would avoid one discrimi

natory result by creating another. It would mean, for example, that one may be

punished for insulting Afro-Caribbeans as such, but not Muslims as such pre-

dsdy the gap that current proposed bans are now aiming to filL79 Or one might

argue that the way to avoid these difficulties is to permit speech that may be only

mildly offensive, reserving prohibitions for the most extreme forms of insult. The

problem with that solution is that the depictions in Das Liebeskonzil and Visions of

Ecstasy were utterly extreme to many religious Christians, just as extreme as are

The Satanic Verses, Jerry Springer - The Opera and any number of unprohibited

78 As of this writing, I am unaware of any edition of Celine's infamous Bagatelles pour un massacrt

commercially published after the original 1937 edition. Nor, however, am I aware of any action

ever taken to impede distribution of the original. Meanwhile, Eliot's poem'Burbank with a Bae deker' is in free circulation. I would therefore apply the same assumptions to Celine or Eliot (or,

say, to publications of Pound's wartime broadcasts) that I apply to Wagner, namely, that banning

any publications of such literary figures, even in editions lacking critical comment would be

inconceivable in Western Europe.

79 See, eg, Home office, n 56 above. See also, eg, Robert Faurisson v France Communication No 550/

1993, UN Doc CCPR/C/58/D/550/1993 (1996), para 7.2


(2006) 69(4) MLR 543-582 563


works to other individuals. (Shall we determine 'the most extreme' by consulting

with the leaders of various racial, ethnic, religious and other communities? Yet,

when it comes to deciding what the public may and may not see and hear, there

may be considerable doubt about who counts as a leader, which leaders speak for

'their communities', and whether communities themselves speak with a single

voice.80) At this point, then, I can re-phrase my condemnation of hate speech bans

as a challenge: anyone who seeks to defend hate speech bans must provide a spe

cific draft version of a norm that would avoid such discriminatory results. In my

view, it cannot be done.

Crucial to viewpoint absolutism is the view that speech is not just another

object of legal regulation. Under the US First Amendment, the ill-defined lim

itations on speech spawned by such open-ended phrases as 'spreading', 'promot

ing', 'advocacy', 'incitement', 'hatred', 'intolerance' or 'other status' would raise the

gravest constitutional concerns. A film producer might decline an intelligent

but provocative screenplay of La Religieuse, either knowing for sure that such a

film would be banned, or -just as bad - because the terms of hate speech laws

are so vague and randomly applied that there is simply no way of knowing

whether it would be banned, so the producer self-censors, accepts silence, just to

play it safe. It is repugnant to the very concept of civically active society that, as a

result of vague or open-ended restrictions on speech, people feel compelled to

silence themselves — to 'chill'speech—not only because some speech incurs coerced

penalties, but also because they simply cannot tell which speech is and is not law

ful, and must protect themselves through silence.81

How would someone in Western Europe fare today, writing that Judaism or

Islam is 'parasitic', that it has 'left nothing untouched by its rot', or that it has

'turned every truth into a lie'? Nietzsche, writing those words about

Christianity82 during the German imperial period, never saw the inside of a

prison cell. He might not fare so well today. It would be mistaken to say that Juda

ism and Islam, unlike Christianity, are minority religions in Europe, requiring

special protection (the free circulation of Wagner's, Celine's, Eliot's or Herge's

writings belies such a claim).The fact that Roman Catholicism has long been Aus

tria^ overwhelmingly dominant faith, far from preventing the ban on Das JJebes-

konzil, was cited by Austrian authorities - unchallenged by the European Court —

to suggest that there was ipso facto'* pressing need for the preservation of religious

peace'.83 Hate speech bans are not 'progressive' challenges to dominant and power

ful interests. Nor have Western European states shown great willingness to prohi

bit invective against smaller faiths while permitting it against larger ones.84

80 See, eg, E. Heinze,The Construction and Contingency of the Minority Concept' in B. Bowring

and D. Fottrell (eds), Minority and Croup RightsToward the New Millennium 25-74 (Hague: Martinus

Nijhoff,1999).

81 Sec, eg, SecJ. E. Nowak and R. D. Rotunda, Constitutional Law (St. Paul, Minn: West, 6th cd, 2000)

1071§16.7(b).

82 Friedrich Nietzsche, DerAntichrist, in Samtliche Wake vol 6 (Munich: Dc Gruytcr, 1988), § 62 (my

translation).

83 ECtHR, Scr A, No 295-A [1994], para 52.

84 Cf ECtHR, Ser A, No 295-A, para 47 (declining to distinguish between larger and smaller reli

gions).


(2006) 69(4) MLR 543-582

Eric Heinze

In the case of Lehideux and Isomi v France, the European Court held France in

violation of ECHR article 10(1) for penalizing the applicants, who had defended Marshall Petain's actions during World War II. Fortunately for the applicants, their

publication minimally acknowledged German atrocities. Had it failed to do so,

the Court would have applied a criterion incalculably vast in its reach: *[L]ike

any other remark directed against the Convention's underlying values, the justification

of a pro-Nazi policy could not be allowed to enjoy the protection afforded by

Article 10'.85 Any other remark? Plato's Republic and Laws are directed, not against

the Convention per se, but certainly against its 'underlying values'.86 Obiter dicta

perhaps, but of an alarming kind, particularly in view of the Court's wholly invented right, in Otto-Preminger-Institut, not to be offended in one's religious

beliefs, and its deferential concept of public morals. Much of Western thought, from Plato through to Marx and Nietzsche, includes virulent rejections of liberal

and democratic ideals. Western European governments may well find themselves

angry about... extremists'87 who challenge democratic values. But Plato, Marx

and Nietzsche were certainly extremists in that respect. One might argue that

European states should, at the very least, prosecute white supremacists who would write such outrages as, 'from the hour of their birth, some are marked out for sub

jection' and are 'intended by nature' to be slaves; and that slaves should 'honour'

their masters. Yet those are, respectively, the words of Aristotle88 and St. Paul.

Non-recognized categories

The arbitrary and discriminatory nature of hate speech bans extends further still.

We have seen that ICCPR article 20(2) mentions nationality, race and religion. Yet

that list excludes characteristics such as sex, sexual orientation, social or economic

class, or physical or mental disabilities, each of which have long been the targets of

the most pernicious hate speech. ICCPR article 20(2), unlike the COM-COE

principle, does not include an 'other forms' clause. Its enumeration of protected

characteristics is dosed, and therefore 'underinclusive'90: it divides the citizenry

into those who are protected and those who are not. As Justice Antonin Scaha

wrote in a US Supreme Court case striking down a hate crimes ordinance

(indeed, one that was broader than ICCPR article 20(2)),

Displays containing some words—odious racial epithets, for example—would be

prohibited to proponents of all views. But [words] that do not themselves invoke

race, color, creed, religion, or gender—aspersions upon a person's mother, for exam

ple—would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc, tolerance and equality, but could not be used by those speakers'

opponents. One could hold up a sign saying, for example, that all anti-Catholic

bigots' are misbegotten; but not that all 'papists' are, for that would insult and

85 ECtHR, [1998] VII ECHR 90, para 53 (emphasis added).

86 See, eg, E. Heinze, 'Epinomia: Plato and the First Legal Theory' {RatioJuris forthcoming)-87 SeeWintour, above n 56 (quoting Prime Minister Tony Blair).

88 IWftics I. v. 1254* 18-24.

89 1 Tim 6:1.

90 Cf Florida Starv BJF, 491 US 524,540-541 (1989).Cf ibid, 541^2 (Scalia, J, concurring in part and concurring in the judgment).

©TheModem Law Review Limited 2006

(2006) 69(4) MLR. 543-582 565


provoke violence'on the basis of religion.' [Government] has no such authority to

license one side of a debate to fight freestyle, while requiring the other to follow

Marquis of Queensberry rules.91

Instead of an exhaustive formulation, then, why not adopt an illustrative formu

lation, along the lines of the COM-COE principle, including an 'other forms'

clause? That option would solve one set of problems only by spawning another.

If an exhaustive formulation is inevitably underindusive, then an open-ended,

illustrative one inevitably becomes bverindusive'92, reaching so far into everyday,

colloquial speech and imagery as to require a full-fledged Newspeak. That defect

becomes dear when we examine prohibitionists' own arguments. Richard Dd-

gado, one of the most widdy published prohibitionists, argues that 'rarist slurs are

more damaging than most other kinds'93, and that '[t]he psychological harms

caused by radal stigmatisation are often much more severe than those created by

other stereotyping actions.'94 However, certainly in Western Europe, one cannot

argue that less offence might be caused by calling someone 'stupid' or 'fat' or 'spas

tic' or 'oik'. For example, as to 'oik' or its various continental equivalents (eg, the

German 'Prolet'), such dass-based derision has a considerable history in Europe,

but is rare in the US, where social problems have been articulated in different,

more often radal or ethnic, terms (as illustrated by the recent hurricane Katrines

effects on New Orleans). Similarly, a word like 'stupid' could seriously offend

someone who (perhaps unbeknownst to the speaker) is mentally handicapped,

or has a history of cognitive or learning disabilities, or other physiological condi

tions assodated in the popular mind with stupidity, such as speech or motor

impairments.95 Phrases like 'fat', 'spastic', 'slob', 'dumb', 'blind as a bat', 'dialogue of

the deaf','idiot','moron' or 'imbecile' could all have similar effects for persons with their respective vulnerabilities. It is no argument to say that radsm, religious con

flict, or sexism have distinctly fraught histories, since prejudices against actual or

perceived mental or physical impairments are andent, directed against small and

vulnerable minorities (at least, in the numerical sense of that term), and have often

laid the ground for the most brutal persecution, from freak shows to forced ster

ilization to concentration camps. Insofar as those individuals do not form com

munities like radal, ethnic or religious ones, that difference only underscores

their isolation and vulnerability.

Delgado offers no guidance as to why radst invective is worse than other sadis

tic, crud or dehumanizing utterances. He daims that 'membership in a radal min

ority can be considered neither sdf-induced, like alcoholism or prostitution, nor

alterable.'96 Yet many physical, mental or psychological conditions that provoke

91 RAVv StPaul, 505 US 377,391-392 (1992) (internal citations omitted).

92 See, eg, Nowak and Rotunda, above n 81, §§16.8-16.9.

93 Delgado, above n 14,15. 94 R. Delgado,'Words that Wound: A Tort Action for Radal Insults, Epithets, and Name-Calling,'

in R. Delgado and J. Stcfancic (eds), Critical RaceTheory: The Cutting Edge (Philadelphia: Temple

University Press, 2nd ed, 2000), 131-140,131 [reprinted Jhm 17 Harvard Civil Rights-Gvil Liberties

Law Review 133 (1982)).

95 See, eg, American Association for Mental Retardation, Position Statement on 'Human and Civil

Rights' (2002), http://www.aamr.org/Policies/posJiumanxivil.shtml, (last visited 04 May 2006).

96 ibid.


(2006) 69(4) MLR, 543-582

De__

hurtful speech, such as low intelligence, ugliness, frailty, mental illness, physical

debility or malformation, poor coordination, blindness or deafness rrxav Le

neither self-induced nor easy to change, and have histories of stigmatism sttetch_

ing further back than any current form of racism.97 Delgado's own discrimi^^-^

predispositions emerge in his recourse to the kinds of pernicious stereotype ^^

he claims to condemn. At one point, he uses the word 'schizophrenia' in the sense

of bumbling or ineptitude,98 perpetuating one of the most disdainful and callous

slurs that can be made against psychologically vulnerable individuals; persons

who have traditionally been diagnosed with that still poorly understood ^j

highly distressing, psychological condition—or rather, that constellation of con_

ditions," which have come to be socially constructed as 'schizophrenia'. Fe

nicious stereotypes better illustrate Delgado's view that 'we are our current st i « »ino

narratives, and they us.

Scholars who insist on the harmful effects of hate speech have failed to

why abuse of some vulnerable individuals is worse than abuse of others. y£n

Greenawalt argues that epithets and slurs that reflect stereotypes about race, ethnic

group, religion, and gender may reinforce prejudices and feelings of inferiojj^ jn

seriously harmful ways'.101 He does concede that personal insults like'You fat ̂ ^

can wound'.102 Astoundingly, however, he then proceeds to claim, with neither word of reasoning of his own, nor any reference to outside research, that,

racist, anti-religious or sexist epithets,'the effect of most such insults is

and dissipates fairly quickly'.103 On Greenawalt's view, then, I 'reinforce . £eej

ings of inferiority' if I shout out to the Pope 'You Christian slob!' By contrast if I

shout out to a severely overweight diabetic 'You fat slob', then such invectjVe yjs_

sipates quickly'. Indeed, he goes so far as to note the particular cruelty of instate to

children,104 ignoring the fact that the stigmas of childhood disabilities can last a

lifetime. Obesity, like schizophrenia, is a distressing state for millions of children

and adults. Like race, it claims the body. For many persons, obesity, like otner

medical or psychological conditions, is just as tied to a sense of personal identitv

as a racial or religious identity. Communities for support may be just as important

to them as communities gathered along racial, religious or other lines.l05 -pi

website of the American Obesity Association states: 'No human conditjOn

not race, religion, gender, ethnicity or disease state — compares to obesity ̂

valence and prejudice, mortality and morbidity, sickness and stigma.'106Cert;ainiv we might debate that claim. Yet it is surely sincere in conveying the feeli^. of

many obese individuals. More importantly, as Scalias observation suggests «

,- ; n

97 Cf Strosscn, aboven 41,536-537 (rejecting Rodney Smolla's distinction between racist-^Tj—T—

forms of offensive speech).

98 Delgado, above n 14,15.

99 See, eg, SchizophKttia.com, http://www.schizophrcnia.com/ (last visited 04 May 2006).

100 R. Delgado and J. Stefancic/Images of the Outsider in American Law and Culture,' in

Theory, above n 94,225,229 (original emphasis).

101 Grcenawalt, above n 40, at 148.

102 ibid.

103 ibid.

104 ife'4146. 105 Sec American Obesity Association, http://www.obesity.org/ (last visited 05/04/2006).

106 ibid.


(2006) 69(4) MLR 541-582 567


sheer terms of such a debate unveil the ugliest face of hate speech bans. They create

two tiers, dividing society into those who may and those who may not, by law, be

insulted, pitting one against the other in an unseemly battle of more-victim-than-

thou.

Charles Lawrence suggests a quasi-phenomenological approach to explain the

harm and alienation wrought by hate speech, fairly describing the immobilising

effect such speech may have107, and voicing concern 'that we have not listened to

the real victims, that we have shown so little empathy or understanding for their

injury^108 Nowhere, however, does he explain why such an analysis could not be

extended to these countless other forms of invective, reaching deep into countless

forms of speech, imagery and art, and what the legal consequences should be.

Why does Lawrence's 'listening' turn so inattentive? That discrepancy between

included and excluded categories, then, indicates yet another anomaly in the pro

hibitionists' position. Their arguments generally purport to represent the interests

of defenceless minorities. However, the prohibitions they propose are more reac

tive than proactive in identifying the categories of persons requiring protection.

Far from identifying the most vulnerable, which would certainly have to include

many of the physically or mentally handicapped, the prohibitionists focus on

interest groups that have already mobilized to achieve meaningful levels of poli

tical organization, scholarly presence and media attention. There is no schizophre

nic or paraplegic Martin Luther King, Malcom X, Oprah Winfrey, Diana Ross,

Will Smith or Denzel Washington. A central rhetorical strategy of prohibitionists

is to present their position as distinctly sensitive to categories of inclusion and

exclusion perpetrated, so to speak, by liberalism's imperial universalisms. Yet the

prohibitionists' own failure to recognize the categories of inclusion and exclusion

that their proposals would create—and that Western European bans have cre

ated—pays scant tribute to that pretension.

Discrimination is always an attack on democratic citizenship. That remains true

of the discriminatory character of hate speech bans. Again, speech is not just

another res of law, to be regulated like taxing, spending, traffic flow or zoning.

Indeed, free speech is not just another human right or higher-law norm, insulated

from some measure of majoritarian or utilitarian policy making. Free speech is

qualitatively different—not necessarily more important, but different—from

other human rights. In the post-industrial, regulatory State, language is the cardinal

medium for the creation and interpretation of legal norms. It is the unique medium

through which we determine what should and should not be law. Norms control

ling speech control the very conditions for the possibility of understanding and

debating legal norms. Even the Norm N that there should never be a certain type

of norm x — say, a Norm that there should never be a norm permitting genocide —

cannot be submitted to the fullest, most critically-minded deliberation without

uncensored discussion of norm x. We renounce democratic principle when we

punish speakers for participating, however crudely, in public discourse.109

107 Lawrence, above n 49,452-453.

108 ibid, 436.

109 See, eg, Weinstcin,'Viewpoint Neutrality1, above n 44,163 (citing Post).


(2006) 69(4) MLR 543-582

einze

A prohibitionist might respond, 'So be it Someone with profoundly inhu

mane and undemocratic views has no claim to participate in democracyf Yet that

approach raises basic questions about why citizens should owe any obedience to

law at all in a democracy. In routine policy decisions about tax rates or trafHc flow

majorities may indeed impose their will on minorities.110 Minorities may legiti

mately be forced to pay 25 percent tax even if they had favoured 20 percent tax or

to drive at 60mph even if they had preferred a limit of 65mph. In a democracy

that legitimate coercion rests largely on the assumption that minorities and dis

senters may have lost their cause, but at least had the opportunity to express their

view. Hate speech bans outlaw that prerequisite of legitimate state coercion. Once

individuals are not merely outvoted, but altogether silenced—altogether

excluded from a core component of democratic citizenship—it is difficult to

ascertain the legitimacy with which a democracy can then expect obedience by

the minority to democratically enacted law. Those who are silenced are not

merely outvoted They are but-citizened'.111 Prohibitionists may assert that it is hate speech itself that silences its targets, thus inhibiting democracy.112 However

beyond personalized, face-to-face attacks, for which free speech advocates do not

generally advocate legal protection (cf Section headed General and 'Targeted'

Speech infra), the view that general viewpoints scare people away from the demo

cratic process has never been supported either by evidence or in principle.

Two models

Having examined some inherent contradictions within hate speech bans, I shall

devote the remainder of the article to a trans-Atlantic comparison by introducing

two broader perspectives. One perspective will be that of Vital liberal. Today, Vital

libiral can be understood as a state that places high value on individual liberty

minimizing redistributive attempts to promote material, ie, economic and social

equality, preferring instead to limit legally coerced equality to formal principles

of equality before the law and non-discrimination.113 I shall not use the term to

mean an utterly minimal, libertarian state, as theorized by Robert Nozick,114 nor a

state directed chiefly by principles of maximum economic efficiency (those

would represent two extreme forms of Vital Mbiral). Accordingly, when I describe

Vital libiral as 'strongly liberal', I shall not mean absolutely liberal in all respects'.

I shall use the United States as an example of a nation which is certainly regula

tory in the economic sphere, but which restricts programmes of economic and

social equality to minimal redistributive policies, such as modest minimum wage

or social security programmes; and which, with respect to freedom of speech on

political, social and ethical issues, purports to protect the greatest possible freedom

110 See, eg, R. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977V

J. Rawls, A Theory of Justice (Oxford: Oxford University Press, 2nd ed, 1999) 24-30 and passim 111 Cf, eg, Weinstein,'Viewpoint Neutrality', above n 44,147.

112 Seen21 above.

ID Sec, eg, ICCPR arts 2(1), 3,14(1), 16,26. Cf, eg, B. Goodwin, Using Political Ideas (Chichcsten Tohn

Wiley, 4* ed, 2004) chs 3,16. 'J 114 See R. Nozick, Anarchy, State and Utopia (Englewood Cliffs, NJ: Basic Books, 1974).


(2006) 69(4) MLR 543-582 569


of exchange of viewpoints among individuals, largely through judicial interpre

tation of the First Amendment to the Constitution. Despite the urgings of some

individual Justices, the Supreme Court has never formally proclaimed a view

point absolutist doctrine of free speech.115 Nevertheless, in recent years, its

approach to hate speech has generally suggested such a position.

The other perspective will be Vetat social—the social-democratic or social-welfare

state, as developed in Western Europe after Wodd War II. Letat social acts more

vigorously to reduce social disparities through greater material equality. It recog

nizes rriinimum standards of health, housing, education or training.116 All Western £uropean states, for example, are parties to the International Covenant on Eco

nomic, Social and Cultural Rights (ICESCR).117 By contrast, the United States,

albeit a signatory, has never ratified it.118 To be sure, in an increasingly competitive,

globalized, post-Thatcherite Europe, Vetat social can no longer pursue those aims as

boldly as was done from the 1950s through to the 1980s. Cutbacks and privatisation

are the order of the day. Nevertheless, as the recent French Non to the proposed European Constitution, or German electoral reluctance about liberal reforms, have

shown, ideals of a strong Vetat social remain vibrant.119 My interest will be not in any

detailed version offetat social, but in its broader aims. Any distinction between Fetat

liberal and /' etat social must inevitably remain heuristic and provisional.

I shall argue that approaches to hate speech within letat social depend not on

expensive spending programmes (at least, not any which do not already exist,

such as schools), so much as on an overall attitude towards social problems. Hav

ing adopted the ideal of greater social equality, Vetat social has not limited its pur

suit of that ideal to the distribution of material benefits. Hate speech prohibitions

have become a further means of promoting social equality. They are seen not as a

necessary evil but as an affirmative good—deeply expressive of the inclusive and com

passionate ideals of Vetat social. As a comparatively inexpensive option, they

become all the more attractive to a state that is eager to uphold the vision of Vetat

social while short on cash. I shall argue, however, that it is precisely the availability

of other strategies within Vetat social that obviates the need for coercive silencing of undesirable viewpoints.

FREE SPEECH IN UETAT LIBERAL

"Within f etat liberal, viewpoint absolutism can be justified with reference to two

broad conceptual distinctions. The first is a distinction between speech and con

duct. The second is a distinction between 'general' and 'targeted' speech. Both of

those distinctions have been hotly disputed, and require close attention.

115 Sec Nowak and Rotunda, above n 81,1063-1064. 116 Sec Goodwin, above n 113, chs 5,16. 117 993 UNTS 3, entered into force 3 Jan 1976. 118 Sec Office of the United Nations High Commissioner for Human Rights, Status of Ratifications

of the Principle International Human Rights Treaties (as of 9Junc2004), http://www.unhchr.ch/ pdf/reporLpdf (last visited 05/04/2006).

119 While those results do not arise entirely from support for Vctat social, such sentiment has played an

important role. See, eg,T. Ferenczi.'Descnchantement' Le Motide 31 mai 2005 (reprinted in http://

www.lcmonde.fr/web/artide/0,l-0@2-3232,36-655954@51-655516,0.html) (last visited 05/04/ 2006); J. Stccle,'Above all, this was a vote against neolibcralism' The Guardian 20 September 2005.

570 © The Modem Law Review limited 2006

(2006) 69(4) MLR 543-582

Eric Heinze

Speech and conduct

Letat liberal can readily prohibit conduct such as murder, assault, rape, theft, tres

pass, vandalism, discrimination, or fraudulent dealing with respect to education,

employment, civic participation, or access to goods and services. Again, hate

speech prohibitionists sometimes argue that historically oppressed groups might

require enhanced protection. Yet competent law enforcement should pay atten

tion to any persons in society subject to discrimination. As the Stephen Lawrence

murder illustrated, there may be discrimination in the enforcement of existing

prohibitions on conduct-based acts, with respect to persons possessing stigma

tised racial, ethnic, religious, gender, or other identities or traits.120 However, that

kind of failure can be confronted directly, without the need to punish viewpoints.

Penalties can punish discrimination at the point of the act, vindicating breaches

retrospectively while coercing tolerant conduct prospectively.

A working distinction between speech and conduct indicates some of the lim

its on speech that remain compatible with viewpoint absolutism. For example,

the US Supreme Court recognizes legitimate, non-viewpoint based regulations,

ie, incidental restrictions on speech, arising under 'time, manner and place' restric

tions, such as banning megaphones in residential areas late at night, or requiring

permits for demonstrations in crowded city areas. Such restrictions are legitimate

insofar as they regulate only the conduct component, and not the viewpoint

component, of the speech, and do not become sham pretexts for viewpoint reg

ulation. Line drawing problems can certainly arise — Was a ban imposed because

of the megaphone or the message? - but the relevant evidentiary problems con

cern any form of de facto discrimination, and any form of controversial speech.

Hate speech introduces no additional difficulties.121 That doctrine of incidental restrictions exemplifies a core difference between

American and Western European approaches to balancing individual rights

against state interests. For the US Supreme Court, it is permissible for govern

ment and the courts to balance freedom of expression against a mm-expressive,

ie, a conduct-based, Hon-viewpoint-related element of speech, such as megaphone

volume. Even then, the restriction must be 'no greater than is essential to the

furtherance of an'important or substantial' government interest.122 That kind of

balancing is the only kind government may do. It may not engage in viewpoint balan

cing, on the view that one kind of viewpoint (supporting, say, racial or religious

intolerance, or Holocaust denial) must be suppressed because an alternative one

(of, say, racial or religious tolerance) is deemed by government to be superior.

Of course, some speakers do not merely engage in the exchange of ideas, but

also in harmful conduct They may, for example, utter intolerant remarks prior to,

in the course of, or subsequent to, assaulting, attacking or harassing individuals on

racial, ethnic, religious, sexual or other discriminatory grounds. For the Supreme

Court, speech may certainly be used as evidence of discriminatory conduct The

120 See Sir William MacPherson of Cluny, The Stephen Lawrence Inquiry (London: Stationery Office,

1999). 121 See United States v OBrien 391 US 367 (1968); United States v Grace 461 US 171 (1983).

122 ibid,2>77.


(2006) 69(4) MLR 545-582 571


case otWisconsin v Mitchell3 concerned harsher penalties imposed for an assault in which the perpetrator used racist language. The Court upheld the penalties, not as legitimate punishment of racist remarks as such, but because the remarks pro vided evidence of the discriminatory act of choosing a victim on the basis of race.

Hate speech, like other controversial speech, may, consistent with viewpoint absolutism, be punished as part of incitement or solicitation to commit a distinct unlawful act Criminal incitement, for example, is found to occur where the

offender, by means of encouragement, P««ga?f. threats or pressure, has sought to influence another to commit an offence. The incitement may be open and general; it need not be directed at a specific person. Imagine a far-nght dema gogue, or an extremist cleric, declaiming about those they hate: Those people are undermining us! In fact, there are some of themjust across the road! Cmon every one! Pick up your guns and let's go get 'em!' For the viewpoint absolutist, a sen tence like Those people are undermining us!' in isolation should incur no liability.

However, liability legitimately arises when, in that^broader context, such a state ment is likely to result in'imminent lawless action'.

Hate speech, like other speech, may also be pumshed as part of a criminal con spiracy. Although the elements of conspiracy may be slightly more complex, it can, for purposes of ascertaining conspiratorial speech, be understood along tradi tional lines to refer to an agreement by two or more persons to commit an unlaw

ful or criminal act, or to commit a lawful act by unlawful means.127 One individual may say to another, with the latter's subsequent assent, Those people are undermining us! You get the acetone, I'll get the matches, and we'll meet back here at midnight!' There again, the presence of the more general proposition 'They're all undermining us!' does not exculpate the remainder of the speech, and even provides legitimate evidence of motive. Note also that speech not just abstractly favouring, but expressed in furtherance of an overt act to overthrow the government of the state to which the offender owes allegiance, can be punished as treason.128 The First Amendment approach contrasts strongly, then, with Western

European norms. In Germany, up to three years' imprisonment may be imposed purely for an oral or written insult to another persons 'religious or philosophical beliefs, in any way that would tend to disturb the peace'.129 An almost implausibly narrow construction of 'would tend to disturb the peace' would be required to approach the US Supreme Court's understanding of •imminent lawless action' (and no such construction has generally been adopted either in Germany, or for

similar norms in other Western European states).

123 See, eg, Wisconsin v Mitchell 508 US 476 (1993)-124 See, eg, Race Relations Board vApplin [1973] OP 813-125 Most (1881) 7 QBD 244. o/._,m

126 Cf Brandenburg v Ohio 395 US 444,447-448 (KWJ. 127 See,eg,J. C Smith, Smith&Hogan:Criminally£ondon: Butterworths 10«hed,2002) 295 128 See, cg,Cramer v US 325 US 1 (1945) (reviewing English and American law); Joyce v DPP [1946]

AC 347. 129 'Wer offentlich oder durch Vcrbrciten von Schnftcn den Inhalt des religiosen oder weltanschau-

lichen Bekenntnisscs anderer in einer Weise b«chimpft. diegeeignet isU den offendichen Frieden zu storcn, wird mit Freiheitsstrafe bis zu dreijahren oder nut Geldstrafe bestraft.' StGB § 166(my translation) (emphasis added). The phrase'die gccignct ist could also be translated as'which is such

as to' or 'which is of such a type as to'.

572


(2006) 69(4) MLR 543-582

Eric Heinze

Certainly, terms like 'solicitation', 'conspiracy' or 'treason' contain potential for

abuse.130 The line between specifically criminal' and 'generally provocative' utter

ances cannot be drawn with precision, leaving my arguments inconclusive in hard

cases. However, given the open-ended terms of hate speech bans, such as 'dissemi nating','promoting','advocacy','incitement','hatred' or 'intolerance' for penalizing

hate speech, my line-drawing problem is far smaller than the line-drawing pro

blems latent in hate speech prohibitions. When regulated only as part of solicita

tion, conspiracy or treason, hate speech raises no evidentiary problems that the

law does not confront when having to ascertain any specific acts of solicitation,

conspiracy or treason. Even if viewpoint absolutism cannot conclusively resolve

the most complex cases, it applies without any such complications to countless

Western European bans that are applied—eg, against Das Liebeskonzil or Visions of

Ecstasy—purely on the basis of their supposedly iniquitous, dangerous or intoler

ant viewpoints, without any suggestion of the occurrence or likelihood of distinct illegal conduct.

Now consider the statement: 'Those people are undermining us! Someday they

must be overcome, by force if necessary!' Those, of course, are ideas that Marx,

Engels, Lenin, Fanon, and many others have preached, and are available in any

bookshop.131 In Marxist states, those words were used (if we're worried about the dangerous effects of general viewpoints) to justify killing and brutality in the tens

of millions, yet were openly admired by many Western intellectuals. If we are to arrest Muslims for expressing such views, we must presumably arrest anti-global-

ists or Socialist Workers Party members who express similar beliefs. The journalist

Shiv Malik reports on a meeting of Hizb ut-Tahrir, a Muslim organization that

had been threatened to be banned in Britain: 'For three hours they sat discussing

the intricacies of Marxist economic thought with not a mention of jihad retribu

tion or the glory of 9/11. It was the kind of enthused debate any university profes

sor would have loved.'132 Elsewhere, I have examined attempts within critical race theory to support legal protection for the violent message of Marxism while

denying protection even to racist speech which does not expressly advocate vio

lence. I have argued elsewhere that the Marxist doctrine of violent overthrow cannot be distinguished from either far-right or religious extremism on grounds

that it forms part of a broader theory or purports to liberate the oppressed.133 Extremist speech frequently makes broader theoretical claims and purports to

liberate the oppressed. Nazism purported to liberate ethnic Germans from the

supposed oppression of international Jewry. Stalinist and Maoist repression pur

ported to liberate the masses from'counter-revolutionaries'.

We may certainly wish to combat hate speech in societies that are still only newly or weakly democratic In those contexts, the bans would be serving more

130 See, eg, Nowak and Rotunda, above n 115, at § 16.13.

131 See Nowak and Rotunda, above n 115,1088-1089 (suggesting that the requirement of 'imminent

lawless action'supersedes earlier cases that had authorized convictions of communist party mem bers or sympathizers).

132 Shiv Malik/The Radical Islamic Group that Acts as "Conveyor Belt" forTcrror' in The Independent on Sunday 7 Aug 2005. Cf 'Terror Measures Could Backfire* The Observer 7 Aug 2005; Jonathan Pctre,'Muslims attack ban on Islamist party' The Dailyielegraph 6 Aug 2005

133 Heinze, above n 12.


(2006) 69(4) MLR 543-582 573


to address the dangers of inadequate democracy than the dangers of hate speech as such. In new or weak democracies, such as Germany in the immediate aftermath of World War H, Or the emerging Balkan states, prohibitions on hate speech might be justified as temporary measures.134 Over time, however, such states' ger minating democratic strengths should be measured precisely by their ability to protect vulnerable persons from harmful or discriminatory conduct without hav ing to curtail speech.135 Germany today could easily re-instate full printing, pub lication, sales and circulation rights for Hitlers Mein Kampfor other far-right materials, demonstrating its confidence in an adult, democratised people to obtain and to use such texts the way they would use any other texts that might be abused, such as those of Celine, Eliot, Machiavelli, Marx, Nietzsche, Pound or Wagner. Currently, Germany only allows edited and commented editions of Hitler's work to be freely produced and commercially distributed,137 despite its obvious historical importance. If Germany persists with those restrictions, it is not because it lacks the ability to protect persons who may be particularly vulner able (on the questionable empirical assumption that lifting such bans would create dangers that do not already exist), but because it seeks to make purely symbolic statements, to itself and to the world, about its past.

Certainly, governments enjoy and should use the prerogative to make symbolic statements. For decades, German authorities have done so admirably, having inau

gurated countless commemorative and educational initiatives to condemn the Nazi past. As a matter of principle, however, it is inconsistent with the concept of a human right that government should abridge it in order to make purely sym bolic statements, however unique or important those statements may be, and even if those gestures are sincerely made in the interest of promoting human rights.138 riuman rights are not human rights if extended only to those who believe in

human rights. 9 Moreover, as a practical matter, it is questionable whether the German government's concerns are served at all in an age of cyber-communica-tion. Persons seeking to consult Mein Kampf unabridged, but not able or wishing to visit a library, may seek internet versions (particularly in the German original), which have largely turned out to be hosted by Nazi or extremist organizations.140 Those are not sites that Germany should provide incentives for visiting.

Questions as to whether a democracy is sufficiently 'strong' to allow hate speech may not be straightforward. Distinctions between'strong* and 'weak' democracies may be rather political, arguably non-justiciable, lacking the 'judicially manage-

134 Cf, eg, Palmer, above n 19. Cf also, eg, Stcfandc and Delgado, above n 12,748-749. 135 In private communications of 2 and 4 November 2005, Peter Molnar of the Central European

University in Budapest has stated to me his view that some newly emerging democracies in East ern Europe may require a viewpoint absolutist approach just as much as Western Europe requires it: some of the newer democracies might just need more freedom to discuss all sensitive subjects

*~, U^iust because they (we) didn't have a chance to discuss those subjects for many years.' D6 CfStGB§130.CfBVerfGE90,241. 137 See, eg, C Zcntner, Adolf Hitlers Mein Kampf: Eine kommentierteAuswahl (Munich, List Verlag, 1974). 138 See, eg, Dworkin, above note 110.

Sn ?CXtaccomPanyingnn 85-89 above. 140 See, eg, http://www.crusader.net/texts/mk/ (including both German and English versions) (last

visited 05/04/2006).


(2006) 69(4) MLR 545-582

Eric Heinze

able standards'141 that a body such as the European Court or the UN Committees

would require if an absolutist position were to be adopted. However, even the

most robust democracy can slip into civic unrest or insecurity. Provisions of

leading human rights instruments, such as the European Convention art 15 and

the ICCPR art 4, have always allowed for exceptional limitations on speech

during legitimate states of emergency. Both the UN-HRC142 and the European

Court143 have insisted that states of emergency are not to be declared indiscri

minately, and must be subject to meticulous and ongoing international super

vision. As conflicts in Northern Ireland have shown, the propriety of a

declared state of emergency depends on highly political and fact-intensive criteria.

Accordingly, it would be no rebuttal of my arguments to claim that, say, in

Northern Ireland, hate speech bans have proved necessary to avoid violence.

Quite the contrary, Northern Ireland is precisely the exception that proves the

viewpoint absolutist rule. It is a place where legitimate states of emergency have

been recognized as exceptions to a rule that I am proposing for stable democratic

societies.

General and 'targeted1 speech - perfbrmativity and social constructionism

The distinction between speech and conduct can be challenged on a linguistic

theory, associated particularly with the twentieth century philosopher of lan

guage J. A. Austin, of 'performatives' — utterances that fulfil executory, as opposed

to straightforwardly denotative or connotative (or constative') functions.144 When

I say 'The apple is green', that utterance, in ordinary usage, refers to a material

reality presumably existing in the extra-linguistic world, independently of the

words uttered. By contrast, when a duly empowered official, under formally pre

scribed circumstances, speaks the words 'I hereby christen thee HMS Fabulous' or

'I now pronounce you man and wife', those words do not simply describe a reality

of which they themselves form no part The words themselves construct a rea

lity—the state of being christened or married—that may have no other way of

coming about. Performatives can be said to function as conduct, not just speech.

They are acts essential to the accomplishment of tasks.

Assume that someone proclaims,'Beware! The homosexuals are out to get your

children!' Grammatically, that sentence might appear to be purely descriptive,

purporting to state an extra-linguistic fact, which, I shall assume, is false.

141 Sec, eg, Baker v Can, 369 US 186,223,226 (1962).

142 Sec, eg, Human Rights Committee, General Comment 5, 'Article 4' (Thirteenth session, 1981),

UN Doc HRI\GEN\l\Rev.l at 5 (1994); Human Rights Committee, General Comment 29,

'States of Emergency (article 4)', UN Doc CCPR/C/21/Rcv.l/Add. 11 (2001).

143 See, eg, Inland v United Kingdom, Series A, No 25 [1978] paras 207-224; Brannigan and McBride v

United Kingdom, Series A, No. 258-B [1993] paras 43-60.Cf, eg, A. Mowbray, Cases and Materials

on the European Convention on Human Rights(Ox£ord: OUP, 2004) ch 15; D. J. Harris et a\ Law of the

European Convention on Human Rights (London: Buttcrworths, 1995) ch 16; P. van Dijk and G. J. H.

van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague KLI, 1998) ch

VIII, §4.

144 J. A. Austin, How to DoThings with Words (London: Oxford University Press, 1962) ch 1 and passim.


(2006) 69(4) MLR 543-582 575


However, treating the sentence as also serving a performative function, we can

ascertain two ways in which it might be construed to count as harmful conduct.

First, one might argue that the sentence does not merely purport to describe social

reality, but actively 'constructs' homosexuals as child molesters. It creates a social

reality in which homosexuals are understood as child molesters, particularly inso

far as such a view is perpetuated and becomes entrenched within dominant social

attitudes.145 Second, it might be argued that any particular homosexual who hears

or reads the statement might suffer personal injury as bad as, or worse than, a

physical assault That point has been one of the most frequently raised by prohibi

tionists.146

In order to approach such problems, we must consider a second distinction, viz,

between general and 'targeted' speech. A common and straightforward instance of

'targeted', face-to-face speech could arise, for example, in an employment context,

where an employer individually harasses one or more specific, identifiable

employees. In such a context, as with solicitation, conspiracy and other distinctly

unlawful acts, words are used as only part of a fuller pattern of unlawful

conduct (eg, harassment), and hate speech may indeed provide positive evidence

of harassment. In Chaplinsky v New Hampshire, the US Supreme Court famously

noted:

[The] English language has a number of words and expressions which by general

consent are 'fighting words' when said without a disarming smile. [Such] words, as

ordinary men know, are likely to cause a fight. So are threatening, profane or obscene

revilings. Derisive and annoying words can be taken as [those that] have this charac

teristic of plainly tending to excite the addressee to a breach of the peace [such as]

face-to-face words plainly likely to cause a breach of the peace by the addressee, words

whose speaking constitute a breach of the peace by the speaker.147

The Court focuses on offensive words specifically 'directed to the person of the

hearer',148 which, moreover, are not limited to the discretely recognized categories

that are ordinarily required for hate speech bans, such as race, sex or religion—and

which, therefore, do not suffer the hypocrisies of hate speech bans. Under existing

law, a jury could certainly be instructed to take account of the impact of invective

like 'stupid slob' directed against someone who is mentally handicapped Indi

vidual acts of aggression or harassment have long been recognized as legally

actionable, regardless of their motivation, ie, intolerance or some other ground.

Where there is psychological damage, perhaps requiring treatment, actions such

as a tort of intentional infliction of emotional injury have long been available,

again, regardless of the motive for the act149 Unlike Western European

approaches, however, Chaplinsky does not license government to silence anyone

145 Cf, eg, Delgado, above n 14, at 9 (discussing negative construction of racial identities through pop

ular discourse); Pv. Delgado and D. Tin,'"The Speech We Hate": First Amendment Totalism, the

ACLU, and the Principle of Dialogic Politics' (1995) 27 Arizona State Law Journal 1281,1293.

146 See, eg, MacKinnon, above n 7; Matsuda et al, above n 21; See Delgado, above n 94.

147 Chaplinsky v New Hampshire 315 US 568,571-573 (1942) (internal citations omitted).

148 Cohen v California, 403 US 15,20 (1971).

149 L. Tribe, American Constitutional Law (Mineola, NY: Foundation Press, 2nd cd, 1988) 838 n 17. Cf ibid,

856. Cf also Strosscn, above n 44,517.


(2006) 69(4) MLR 543-582

Eric Heinze

whose words might cause offence to individual listeners, if those individuals are

not personally targeted.150

One might challenge the distinction between general and targeted speech by

citing the example of defamation. If, for example, someone says or writes pub

licly, knowing the statement to be untrue, that Dr So-and-So is a gay child moles-

ter, Dr So-and-So could easily win a defamation suit We might therefore reason

that someone who calls all gays, or all gay doctors, child molesters, will have

smeared that many more people—an entire 'group'—and must therefore be held

at least equally liable. That is the theory of 'group defamation'. However, it is pre

cisely the requirement of some demonstrable level of individual targeting, as

opposed to the general expression of a false view, which explains why viewpoint

absolutism must reject prohibitions on group defamation. In the 1952 case of

Beauhamais v Illinois, the United States Supreme Court recognized defamation as

a longstanding exception to free speech, and found that classes of people could

be illegally defamed just as could individuals.151 "With only a 5-4 majority,

however, the Court was deeply split, and the decision has long been seen to con

flict with the Court's subsequent First Amendment jurisprudence and to be

'thoroughly discredited'.152 Group defamation bans simply become standard hate

speech bans, with all the infirmities discussed in the section above headed The

Arbitrary and Discriminatory Effects of Hate Speech Bans.

Empirical approaches

"Would the foregoing defences of viewpoint absolutism collapse if it could be

shown that hate speech creates greater intolerance? Empirical studies do suggest

that individuals can genuinely be hurt by hate speech. But such studies tend to

focus on the kinds of face-to-face encounters, which under a 'fighting words'

rationale, do not merit protection from a viewpoint absolutist perspective.153

Moreover, it is questionable whether an empirical study could be constructed to

test more general links between hate speech and intolerance, as it would be diffi

cult to distinguish the effects of hate speech from those of other social forces like

immigration, globalization, business cycles, high-profile media events, or subtler

media portrayals.

If there is any straightforward, causal relationship between levels of hate speech

and intolerance, it now appears to be one of distinctly inverse proportion. Ste-

fancic and Delgado inadvertently make that point themselves. Reviewing several

issues relevant to hate speech bans, they reach the conclusion that the Western

European bans are generally successful and justified (with any failures, generally

non-European ones, constituting a small minority154). Bizarrely, they then cite

150 See, eg, Terminiello v Chicago, 337 US 1 (1949); Edwards v South Carolina, 372 US 229 (1963); Cohen v

California, 403 US 15 (1971). Cf Nowak and Rotunda, above n 115, § 16.39.

151 i6«4255-25a

152 Strossen, above n 41, 517. Cf Weinstein, 'Viewpoint Neutrality', above n 44,159-61; Nowak and

Rotunda, above n 81,1171.

153 See, eg, L B. Nielsen, License to Harass: Law, Hierarchy and Offensive Public Speech (Princeton: Prin

ceton University Press, 2004).

154 Stefancic and Delgado, above n 4,741-744.

© The Modern Law Review Limited 2006 (2006) 69(4) MLR. 543-582 577


statistics to argue that racism has dramatically increased in Europe while such bans

have been in place.155 If there is any sense to that argument, it can only be that the

authors assume two un-stated premises: firstly if evidence shows that rates of dis

crimination in Western Europe are steady or are increasing, then hate speech pro

hibitions are required in order to combat it; and secondly if evidence shows that

the discrimination is decreasing or has ceased, that proves the success of Western

European hate speech prohibitions, so they must be maintained in order to pre

serve that achievement, lest their abolition lead to a resurgence of racism. Such an

argument is a textbook example of pseudo-empiricism, ie, of a tautological pro

position ('Either hate speech prohibitions are required or hate speech prohibitions

are required') dressed up in the lingo of empirical argument. Facts and statistics are

deployed to create the illusion of empirical support for a conclusion, which, how

ever, must already be reached, not on the basis of those facts, but regardless of

them. A genuine empirical argument would tell us under which circumstances

the prohibitions are, and under which circumstances they are not, to be imposed;

and, again, in view of the complexity of intolerance and of its causes, it is ques

tionable whether a study could be constructed that would reliably identify such

circumstances.

A further concern about the link between speech and conduct arises from the

prospect of speakers being driven underground. Nadine Strossen cites evidence

that hate speech prohibitions do not eliminate intolerance, but simply drive it

underground such that it resurges in more virulent form.156 Stefancic and Del-

gado disagree, citing evidence that the bans do not lead to heightened intoler

ance157 (again, at odds with their claim of increasing intolerance in Europe). Yet

that disagreement runs the risk of confusing two distinct issues. Whether pushing

a movement underground today will cause it to resurge more virulently tomor

row is certainly a worthy question. The more fundamental question, however, is

whether speakers should be driven underground at all, regardless of the likelihood

of more virulent resurgence in the future. In response to recent British govern

ment proposals to ban Hizb ut-Tahrir, Dilwar Hussain, a research fellow at the

Islamic Foundation of Leicester, maintains that driving the group underground

will simply lend it prestige. It 'will disconnect [the] debate from the wider com

munity and risk radicalising it even further.' He continues,'What should happen is

that mainstream Muslim groups should be empowered to debate with them and

tackle them head on.'158

FREE SPEECH IN VETATSOCIAL

Western European states, as reflected in Council of Europe and similar pro

nouncements, have not deemed the prohibition of hate speech to be an unfortu

nate, necessary evil, but a positive good, expressive of the ideals of Vital social

155 4

156 See, eg, Strossen, above n 44,554,559.

157 Stefancic and Delgado, above n 4,739.

158 Cited in Malik, above n 132


(2006) 69(4) MLR 543-582

Eric Heinze

CERD, for example, does not adopt a minimal, 'hands off* approach to social

exclusion. It decisively embraces Vetat social. Article 5 includes rights to housing

(5(e)(iii)), health care and social security (5(e)(iv)), or education and training

5(e)(v). Article 5(e)(i) proclaims a right to work and to 'favourable conditions of

work, to protection against unemployment, to equal pay for equal work [and] to

just and favourable remuneration'. CERD does not merely pronounce against

intolerance. It pronounces emphatically for social equality within a state offering

material as well as moral supports. We might well question whether such eco

nomic and social provisions in instruments such as CERD or ICESCR have done

much good for poorer, non-Western States Parties. However, the Western Eur

opean Vetat social has always taken those obligations seriously, as suggested, for

example, by the detailed provisions of the European Social Charter of 1961.159 Insofar as viewpoint absolutism suffers certain weaknesses, Vetat social is argu

ably better situated to meet them than is Vetat liberal, with which it is normally

associated. The real weakness of viewpoint absolutism is that Vetat liberal promises

few affirmative or pro-active means for combating intolerance. The measures it

proposes are largely negative or retroactive, such as penalizing criminal conduct

at the relatively late stages of commission, attempt, conspiracy or solicitation, or

combating discrimination after it has occurred, or deterring such conduct

through the threat of penalty. Seeing social, economic and cultural interests more

as flexible, legislative aims than as higher-law rights160, Vetat liberal in the American

mold does not bind itself to comprehensive, pro-active programmes for promot

ing tolerance. Yet that is precisely what Vetat social seeks to do. A good example is

found in the area of education. In the United States, each state exercises indepen

dent control of its educational curriculum, making federal control difficult in

constitutional principle as well as administrative practice.161 Most Western Eur

opean states, by contrast, have long exercised national control over at least the

basic elements of primary education. That control places those states in a strong

position to promote values of tolerance throughout the curriculum, from the ear

liest ages. Other means at the disposal of Vetat social include media campaigns or

job-related training programmes. In those ways, Western European states can pro

mote the attitudes of social equality characteristic of Vetat social, without either

discriminatorily policing speech or incurring any significant added expense.

American prohibitionists have spoken of the emergence of 'First Amendment

Realism' in order to challenge classical, liberal 'marketplace' defences of free

speech.162 Not unsurprisingly, the marketplace theory made its way into First

Amendment jurisprudence during the heyday of laissez-faire economics, in

which the market was seen as exposing consumers to the greatest range of goods

and services, maximizing overall social well-being by allowing individuals to

159 European Soda] Charter, (ETS No 35) 529 UNTS 89 (entered into force 26 Feb 1965). 160 See, eg, H. J. Steiner and P. Alston, International Human Rights in Context (Oxford: OUP, 2nd ed,

2000) 237-238,249-275.

161 Cf 'Concluding Observations of the Human Rights Committee, United States of America1 UN

Doc A/50/40, (1995) paras 271,294 (noting US federalism as an obstacle in fulfilling ICCPR obli

gations). Cf also 'Conclusions and Recommendations of the Committee on the Elimination of

Racial Discrimination, United States of America' UN Doc A/56/18 (2001) para 383.

162 See, eg, Delgado, above n 14,6.


(2006) 69(4) MLR 543-582 579


make the best choices. First Amendment Realists, however, have challenged the

idea that unrestricted exposure will induce individuals to make the best choices;

that influences such as prejudices and power differentials interfere with that pro

cess. Yet in reviewing American scholarship on hate speech163, one is struck by the

assumptions about law and the state shared by both the absolutists and the prohi

bitionists, despite the fact that both share the goal of combating intolerance. Both

make assumptions about law that are both minimum-statist and strongly rule-

bound (both curious assumptions in the home of American legal realism, yet pre

sumably arising from the fact that hate speech scholarship arises directly within

the context of actual or hypothesized litigation). Law is understood only as state

coercion or state abstinence. The only clear role for the state is either to permit or

to prohibit hate speech—either to use a stick, or not to use one. No carrots in

sight. The idea of state involvement to promote tolerance that is active yet not

coercive is rarely examined, perhaps because protagonists on both sides would

be suspicious of government-led initiatives, seeing them as 'soft' at best. The only

role imagined for the state is either to stand back from the ring and let everyone

fight it out, or to jump into the ring and break up the fight, because some blows,

albeit not below the belt (ie, harmful in the classical liberal sense), nevertheless

hurt just as much. Educational initiatives are cited in passing, if at all, as anodyne

goodwill exercises.164 There is little discussion of a world in which the primary

approach to hate speech is a state that assumes a leading role in promoting atti

tudes of tolerance and pluralism, without having to penalize people who fail to

adopt those values. From the standpoint of international obligations, Vital liberal

would have more difficulty defending unrestricted hate speech, in view of its fail

ure to rely more heavily on state-led initiatives.

Although a brief article cannot allow a detailed examination of the various

measures that te'tat social can adopt, guidance is provided in the 'Report of the

World Conference Against Racism, Racial Discrimination, Xenophobia and

Related Intolerance' adopted in Durban, South Africa in 2001165, also called the

Durban Declaration and Programme of Action.166 While providing for bans on

dissemination of ideas,167 contrary to my viewpoint absolutist position, that

report also recommends a range of other measures. The document explores action

specifically relevant to indigenous peoples, migrants, or refugees, also providing

detailed recommendations on health care, employment, social services, education,

training, environmental discrimination, legal aid, market access and access to new

technologies. Other documents can be approached in similar fashion. The Eur

opean Commission against Racism and Intolerance has issued several policy

recommendations which, while endorsing bans incompatible with the views stated

in this article, include extensive non-coercive measures for combating intolerance,

such as educational, media, interfaith and similar initiatives, as well as reliance on

other human rights norms, including non-discrimination and equal access to

163 For a recent review of the American debate, including leading citations, see, eg, Delgado, ibid.

164 Sec Calleros, above n 44,1258;

165 UN Doc A/ CONF189/12 (2001).

166 ibid. Declaration, at preambular para 38.

167 ibid, Declaration, at paras 27 and 86; Programme of Action, at paras 147(b)


(2006) 69(4) MLR 543-582

Eric Heinze

justice. "While Vital liberal may hesitate to see such initiatives as anything more than

general social goals, tetat social has long been receptive to incorporating them into law.

Media

Even assuming equal protections for hate speech, further questions arise as to

whether it should be protected in all forums—commercial television and radio,

state-operated television and radio, internet, street corners. As a general matter,

freedom should be proportionate to availability. A forum that is scarce and

requires government allocation or supervision, such as traditional terrestrial tele

vision and radio frequencies, must perforce be subject to policy choices and thus

to viewpoint-based ones. A government grant of a scarce resource is tantamount

to a subsidy, and no First Amendment or viewpoint absolutist principles affirma

tively require government to subsidize every, or any particular, viewpoint (even

if, as a matter of policy, government decides to grant, say, equal or proportionate

access to party political broadcasts). By contrast, forums that are cheap and limit

less, such as internet sites, cable television, street corners, as well as cinemas or

church and mosque podiums (where access is presumably as free as a given man

agement or congregation is willing for it to be) are compatible only with non-

viewpoint-based restrictions imposed to serve a compelling state interest

Immigration

Another problem throughout Western Europe is that of non-citizens—the focus

is currently on Muslim clerics—who enter Europe. It is a longstanding principle

of international law that individuals do not have a right to immigrate, and that

general immigration decisions are questions of state policy.169 Letat liberal may

legitimately exclude or expel a speaker for virtually any reason at allt and may there

fore do so on grounds of hate speech. Exceptions may arise where the foreigner

has claimed political asylum, or faces torture, or cruel, inhuman or degrading

treatment in the state to which expulsion is sought170 This issue is not without

importance, as European governments may rely on high-profile expulsions of

non-nationals as a means of avoiding the various issues I am discussing here.

Nevertheless, as those problems raise distinct issues in human rights law, subject

to different norms, they require separate treatment

Professional Ethics

Recall my grounds for distinguishing between the concepts of 'viewpoint

absolutism' and 'free speech absolutism', namely, that not all regulation, but only

viewpoint-based regulation of speech is presumptively illegitimate. No view

point absolutist would defend the proposition that all expression, even of 'pure

viewpoints', must be protected under all circumstances. Sales representatives or

television presenters, for example, might legitimately be sacked for using hate

168 See above n 55.

169 That prerogative is presumably an attribute of statehood as such. See, eg, P. Malanczuk, Akehutsfs

Modem Introduction to International Law (London: Roucledge, 1997) 75-77.

170 See, eg, Mowbray, above n 143,110-128.

©The Modern Law Review Limited 2006 (2006) 69(4) MLR 543-582 581


speech, simply because they might be sacked for many kinds of speech or conduct

that are deemed unprofessional, such as dressing tastelessly (eg, failing to wear a

prescribed uniform) or using obscene language. Questions of viewpoint would

arise only if employees were fired, say, for some kinds of hate speech but not

others; that, however, would be a problem of discrimination, and not of hate

speech regulation as such. Moreover, similar approaches would apply in the public

sector. As of this writing, a four-week suspension of duty has been imposed upon

the London mayor Ken Livingstone for referring to an Evening Standardjoumriist,

in a Chaplinsky-style face-to-face encounter, as a'Nazi concentration camp guard1

when the journalist questioned him as he was leaving a party.171 As in the private

sector, hate speech rules would add no duties that cannot already be imposed on

public officials through general codes of conduct Presumably, with or without

hate speech bans, the mayor would have been similarly disciplined if, in the same

situation, he had said 'Fuck you' or given the journalist 'the finger', or 'mooned'

the journalist (Heaven help us), or undertaken any of countless other breaches of

protocol commonly imposed on officials.

171 See, eg, reports and comment inThe Guardiatt, 25 Feb 2006,1-2, $ 30. CfTheEvening Standard, 24

Feb 2006,1,4-7,13.


(2006) 69(4) MLR 543-582

Viewpoint Absolutism and Hate Speech

Documents

Transcript of Viewpoint Absolutism and Hate Speech