What we can learn about Freedom of Expression
There have been some great debates in response to the Charlie Hebdo attack. Unfortunately, there have also been some seriously banal ones, but let’s but those aside for today and keep the discussion positive.
I don’t think any of these debates have changed any of my personal views on the subject, but they pointed out some alternatives. One good one came this morning on BBC about the expiration of the copyright on Hitler’s Mein Kampf (link to http://www.bbc.co.uk/programmes/b04xrj8j). The debate is whether the book should be completely banned in Germany once it becomes open access. The fear is that it would be too widely distributed and could lead to all kinds of mischief in the wrong hands. Europe has many laws against hate speech that are much more severe than anything we have in the US and Holocaust denial is a serious crime. But this would constitute book banning.
The first thing we should do is list the kinds of expressions that some people/cultures find fault with. Only then can we decide if and how they should be regulated. In the U.S., we only restrict one kind of speech – when it has a direct and immediate threat to someone’s safety. You can’t yell fire in a crowded theater because people can be trampled in the panic. You can’t directly threaten a person or call for a specific person or group to be harmed in any specific ways. But there are limits on this restriction. If you are generic enough in your personal threat or public call to action, you can get away with it. “I think all bad people should be beat up immediately” or “Hey Joe Smith, sometime in the future I am going to find and get you” are both OK. The threshold is whether a reasonable person would have a significant fear for his or her safety. The exceptions that I can think of are bomb threats, which are illegal even if they are false because of the huge expense and inconvenience. There are also some new initiatives about bullying, particularly on social media.
Then there is hate speech. This is defined differently in each jurisdiction but the general idea is that you express hatred or negative stereotypes about an entire class of people: race, religion, culture, gender, sexual identity. No individual is personally threatened, but spreading these ideas could lead to discrimination or injury to a member of this class in the future. Holocaust denial is a special case of hate speech. The fear is that systemic anti-Semitism has been around in Europe for millennia and there were pograms against Jews every couple of decades since the times of the Romans. The only way to fight something this ingrained in the psyche is to wipe it from public discourse. The problem with all hate speech laws is that they just send it underground. I think it is easier to fight it when it is out in the open. So personally, I am very strongly against hate speech laws. I want the haters out in the public square where I can protest against them and educate their listeners.
The Charlie Hebdo attacks were based on expression against a respected religious figure. Religion is a sensitive domain because it is sacred. When someone’s self-identity and social-identity are both tightly integrated with a concept of any kind, it often leads to violent response. That is why these kinds of regulations frequently appear. It is similar to flag burning in that way. In this case, I make a differentiation between what you should do versus what is regulated. I think it is in very poor taste to ridicule a respected religious figure, especially if you are doing it intentionally to humiliate someone or their religion. It is not Mohammed who is causing the fundamentalist Islamist terrorist attacks. But that does not mean that it should be banned. Again, get the haters out into the public square where we can protest them and educate their followers.
Any response that resorts to violence is certainly beyond the pale. This applies to all of the above. Even when something has been regulated by a jurisdiction, vigilante justice is not the way to go. That kind of expression I have no problem banning and prosecuting to the full extent of the law.