In a democracy no one can have a right not to be insulted or offended

This is an excerpt (without footnotes) from The Tyranny of Silence by Flemming Rose (Cato Institute, 2014). Reprinted by permission from the author.

I often heard it said that Jyllands-Posten had “abused its freedom of speech” by its decision to publish the Muhammad cartoons. Authoritarian regimes also clutch at the phrase when incarcerating dissidents. Chinese dissidents are deported to labor camps for “abusing their freedom of speech.” Egyptian dissident Saad Eddin Ibrahim was imprisoned for “abusing his freedom of speech” by criticizing Egyptian president Hosni Mubarak. Murdered Russian journalist Anna Politkovskaya “abused her freedom of speech” by penning articles critical of the wars in Chechnya. If Hitler’s propaganda within a totalitarian regime and activist criticism of a totalitarian regime can both be termed “abuse of freedom of speech,” the phrase is clearly meaningless, insipid, and open to manipulation.

Following the Holocaust, European democracies concluded that a ban on hate speech could prevent or at least contain racist violence. History provides no evidence for that reasoning. Nonetheless, legislation to that effect was passed in Germany and Austria, and it became a driving force in international human rights efforts in the decades after the war.

Following its inception in 1949, the Council of Europe took steps toward establishing the European Convention for the Protection of Human Rights, one of the world’s first human-rights treaties. A European Court of Human Rights was set up to monitor and to address complaints by citizens who believed their rights had been violated. That development was quite momentous and indeed laudable. For the first time, individuals were accorded rights across national boundaries. The court was not a court of appeal. It was not empowered to nullify the ruling of courts of law at the national level, but it could order a member state to align its practice with the human rights convention in the case that it ruled in favor of a plaintiff.

Since 2000, however, the constraints on free speech contained in United Nations and European conventions have become a significant instrument for grievance fundamentalists and for authoritarian regimes that use them to justify oppression of dissidents and minorities. Their use has tended to occur with particular reference to two articles: Article 20, paragraph 2, of the International Covenant on Civil and Political Rights, and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.

The first runs as follows: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

The second, taking as its point of departure a rather broad definition of “racial discrimination,” declares that the state “[s]hall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination … against any race or group of persons of another colour or ethnic origin.” Moreover, states were obliged to prohibit organizations and propaganda activities that promoted or incited racial discrimination, just as participation in such organizations or activities was to be made punishable by law.

The wording is awkward and technical, though the intention is clear: there is to be no difference in principle between saying something discriminatory and doing something discriminatory. With time, definitions of “racism” and “discrimination” widened, and the distinction between words and actions became even more blurred. In the European welfare states, that blurring of distinction coincided with the state undertaking to realize an ideal of equality that involved positive discrimination for those deemed weak or considered to be victims, and sometimes a corresponding negative discrimination of those whose personal resources were found satisfactory. As an increasing number of groups were classified as weak, it also seemed more important to protect them against speech that might be interpreted as discriminatory.

With large-scale immigration to Europe from the Islamic world, European welfare states suddenly found themselves under pressure. The gaps that emerged in cultures, religions, and lifestyles in Europe’s newly diverse countries meant, on the one hand, that the welfare state had to impose demands on its new citizens to make them adapt to the norms of the society and thereby to ensure a continued community of values; while on the other hand, the state was forced to take measures against indigenous citizens who expressed discontent with the new demographic developments in language it considered discriminatory or a threat to social stability. Wide-reaching freedom of speech essentially ran against the grain of the welfare state in a multicultural society.

There were sharply divergent notions as to what was actually going on. One side insisted that free speech was under pressure: new diversity and new sensitivities were squeezing free debate. The other side claimed that Europe was now a place in which Muslims were subject to witch-hunts and persecution. There were calls to ban mosques, minarets, and traditional Muslim clothing for women: some likened that development to the plight of the German Jews in the 1920s. So how could anyone even claim that free speech was under fire?

The fact that two such opposing views could exist side by side was a symptom of the crisis into which the welfare state had plunged. The culture of rights that had shaped the welfare state to begin with, and that had formed the basis of its steady growth for half a century, now threatened to undermine it completely. It was unable to contain the diversity and the internal disparities imposed on it by a multicultural society.

We were heading for a Europe driven by fear of its own shadow, a Europe wanting to protect itself against the new reality, rather than one able to create a framework for the free interplay of its citizens. Fear was undermining freedom—both for those who feared Islam and for those who feared insulting it.

In the European welfare state—in which government reserves the right to interfere in people’s lives with reference to positive values, such as human dignity, security, and social harmony—freedom is not likely to be liquidated suddenly in the manner of the brutal dictatorship, where oppression is a visible constant, and opponents are rounded up in the dead of night. Rather, it will occur gradually and without fuss.

The grievance lobby in the UN, the European Union, and the human rights industry was directed by the notion that criminalization of racist utterances (so-called hate speech) would lead to racism being eradicated. They drew up a succession of reports urging member states to prosecute and punish perpetrators of hate speech to a much greater degree than before. The grievance lobby wanted the definition of racism expanded to encompass still more groups within society. They were on solid ground: the Convention on Racial Discrimination directed that member states adopt prohibitive legislation and generally take measures to eradicate hatred. The state was to educate and reeducate its citizens, an aim that appeared at once hysterical and ominous—and about as realistic as banning snow in Greenland. Yet it won immediate favor. Sentiments, not least those offended, took on primary significance and political clout. French expert on international relations Dominique Moïsi went so far as to speak of “the geopolitics of emotion.” The Cartoon Crisis was one terrifying illustration of what he meant.

The ambition of the Convention on Racial Discrimination to cleanse society of bigotry accorded the state a role that, as Danish human rights lawyer Jacob Mchangama noted, appealed strongly to the political left. There was something rather utopian about the project, but more seriously, it gave government free rein to introduce censorship and, paradoxically, to oppress the very human rights it had originally been conceived to protect. Those efforts to eradicate hatred and racial discrimination encompassed two specific threats to freedom of speech.

The first issued from the lack of a universally accepted definition of “hatred” in international law. Not even member states of the European Union were in accordance. Dictionary definitions of “hatred” highlight feelings of extreme antipathy or disapprobation and abhorrence. “Hate speech” is defined as utterances expressing hatred of, or intolerance toward, other social groups, particularly on the basis of race, gender, nationality, ethnicity, religion, or sexuality. But intolerance and hatred toward others may, in many contexts, be quite legitimate emotions. They may surface in any of us when confronted with those who commit violence, oppress women, persecute homosexuals, or indeed in any number of contexts involving gross injustice and abuse of power. Where is the dividing line between expressing hatred, abhorrence, or antipathy within the bounds of the law and doing so in such a way that it should be prohibited? There is no clear-cut answer, which opens the field for arbitrary interpretations endangering freedom of speech.

The second threat to freedom of speech arose from broadening interpretations of racism encompassing increasing numbers of social groups and types of speech. In Denmark, legislation against racial discrimination was introduced in 1939 to counter outrageous attacks on Jews, that, for example, they drank the blood of Christian children and other monstrous myths. Following the adoption of the Convention on Racial Discrimination, the scope of this so-called racism paragraph was successively widened, and sanctions tightened in 1971, 1986, and 1995, the aim being not merely to protect citizens against false accusations inciting hatred of specific groups, but increasingly to criminalize scornful and offensive speech regardless of their truth. Today, action may be taken against individuals expressing personal opinions, value judgments, and moral evaluations. After the law was widened to safeguard the sentiments of the homosexual community, a woman of Christian faith narrowly avoided conviction for publicly stating in a letter to the editor that she personally considered sex between homosexuals to be the most disgusting form of fornication.

The racism card was played left, right, and center. A ruling of the Danish Supreme Court in 2003 acquitted a woman of slander against populist leader Pia Kjærsgaard, after she said on the radio that she would be unwilling to be identified with Kjærsgaard’s “racist views.” That ruling followed a new, broader definition of “racial discrimination,” which was now “discrimination and oppression of, or merely dissociation from groups of individuals who may be of the same race as oneself.” On that count, vegetarians could be branded racist for dissociating themselves from meat eaters (or vice versa). Socialists were racists if they dissociated themselves from conservatives, and there was almost no limit on what kind of critical speech could be deemed “racist.”

At least the woman was acquitted. The court thus ruled that calling a politician racist was not punishable by law. However, the new, wide definition of racism continued to be employed in calling for constraints on freedom of speech in other contexts. In 2010, a complaint was lodged against the head of Copenhagen’s police homicide squad for racism following a comment he made when a Romanian man randomly murdered a Norwegian flight attendant in a Copenhagen hotel. “The Romanians are without scruples. They’ll kill for a couple of hundred kroner. It’s a whole different culture,” the officer said. The context made it very clear that it was a comment made with specific reference to the case in question, and that no generalization was intended. The officer swiftly retracted his comment and publicly expressed regret if what he had said had been taken to apply to all Romanians. The case sparked lively discussion in the Danish media, demonstrating that free and open debate was by far the best way of regulating the bounds of freedom of speech in a democracy. Yet the officer in question was reported to the police for racism. What such tendencies will lead to may be rather difficult to predict. Perhaps, it won’t be long before we see media taken to court for racism on account of (authentic) headlines, such as “Mexicans Smuggle Cocaine in Sharks,” “Swedish Men Impotent,” or “Danes Enjoy Cocaine.”

In today’s grievance culture, with its identity politics and cultivation of the victim, the grievance lobby has succeeded in shifting the fulcrum of the human rights debate from freedom of speech to the necessity of countering hate speech; from the individual pursuing individual liberties to the individual aggrieved by the liberties taken by others. That shift becomes counterintuitive, the logic increasingly absurd. Those aggrieved by free speech are defended, while those whose speech is perceived as offensive to such a degree that they are exposed to death threats, physical assault, and sometimes even murder are deemed to have been asking for it: “What did they expect, offending people like that?”

When we focus on nondiscrimination and equality, and aim to empower the aggrieved, tolerance is no longer about the ability to tolerate things that we don’t like; it becomes the ability to keep quiet and refrain from saying things that others may dislike. That is the basic, and very flawed, premise underlying the much-touted phrase “Freedom of speech is not the same as freedom to offend.”

Following the collapse of the Berlin Wall and the march of freedom through Central and Eastern Europe, a number of European countries have adopted new insult codes. In Norway and the Netherlands, measures have been taken to replace outdated blasphemy codes with new legislation to safeguard groups and ideas central to personal and group identity. So far, legislators in the two countries have not succeeded, but the idea is being pushed.

British sociology professor Steven Lukes mapped out the grievance fundamentalists’ ideal society in his novel The Curious Enlightenment of Professor Caritat, in the author’s words “a comedy of ideas.” The novel is about Nicholas Caritat, a professor of the Enlightenment, who, after being rescued from prison in the military state of Militaria, is assigned the task of journeying to find the best of all worlds. On his travels, he passes through Utilitaria, Libertaria, and Proletaria, but ends up in Communitaria, a society based on the notion of multiculturalism and equality of all its 34 ethnic groups and 17 religions.

Communitaria was once an ethnically and religiously homogeneous society. Then came the great wave of immigration. Individual rights no longer exist. The only right acknowledged is the right of the various communities to be respected.

People are forced to remain within the religious and ethnic communities to which they belong, and marriage across community borders is frowned on. Individuals attempting to establish new communities are ostracized and branded as rootless cosmopolitans. Communitaria is founded on the so-called Principle of No Offense, manifest throughout its legislation. Freedom of speech does not exist. Indeed, it is a punishable offense on the grounds that speaking freely involves the risk of offending others.

The citizens of Communitaria are constantly on their guard to defend freedom, that is, the freedom of others from insult. For that reason, humor and satire have been abolished. In fact, no one knows what they are, so when a reviewer deems a rock opera to be a satire dealing with the fanaticism of faith and the intolerance of ethnicity, a need arises to investigate the concept. Thus, the rock star composer discovers to his horror that satire seeks to expose human folly and malice through ridicule.

The religious and ethnic communities of Communitaria demand that the composer dissociate himself from his work and apologize in public. Subsequently, he is forced into hiding when it transpires that his satire is deemed sacrilegious, the worst of all crimes in Communitaria, and the only one commanding the death penalty on account of its violating the absolute right of communities to be respected.

That prompts Professor Caritat to investigate the extent to which Communitaria is familiar with tolerance, a concept that he considers would make it easier to find a solution to the problem. Tolerance, though, is not practiced, not least because it entails the acceptance of offensive speech on the part of others, and why should one accept that? Why, indeed, should it be necessary at all to offend anyone else?

Citizens of Communitaria’s religious and ethnic communities are quite simply unable to tolerate a lack of respect for what they hold to be sacred. “Why?” Professor Caritat inquires again in a last-ditch attempt to plead the case of tolerance, a concept in which he has conducted considerable scholarly research.

“The problem lies in the giving of offense. What you call tolerance, so far as we understand it, is to accept being subjected to an offense without objecting; respect is refraining from causing it. Our whole society is committed to the second, not the first,” explains the chairman of one of Communitaria’s parliamentary groups.

Does that sound familiar?

In the spring of 2006, I visited liberal law professor Ronald Dworkin, an ardent advocate of free speech, in New York. He had recently published a noteworthy commentary on the Muhammad cartoons in the New York Review of Books titled “The Right to Ridicule.” “In a democracy no one, however powerful or impotent, can have a right not to be insulted or offended. That principle is of particular importance in a country that strives for racial or ethnic fairness,” Dworkin wrote.

Sitting in his office on Washington Square, I asked him to expound on the idea. “The democratic process is founded on the idea of freedom of speech,” Dworkin told me.

In a democracy we discuss things and then vote, and we expect those who lose the discussion and the vote to accept the decision of the majority and uphold the laws it has adopted. That’s quite an extraordinary thing to ask of people. My conviction is that the only way we can ask that is if everyone in the democratic process has had the chance to put forward their arguments in exactly the way they wish. If we suppose one group has the special right not to be ridiculed, what that automatically entails is that others are deprived of their right to voice their opinions about that group.

“Why can’t we just ask people to word their criticism politely and respectfully, avoiding scorn, mockery, and ridicule?” I asked him.

“We can’t do that, because scorn, mockery, and ridicule are specific modes of expression, which present their content in such a way that it cannot be duplicated less offensively without that content being changed,” he said. “We cannot force some other taste on people, or some different standard as to how they should voice their opinions in the public debate, at the same time as we ask them to accept the decisions of the majority.”

In contrast to Europe, the United States has not legislated against hate speech. Throughout the 20th century, the limits on what individuals in America can say without running the risk of prosecution have gradually been pushed back. The U.S. Supreme Court’s interpretation of the First Amendment to the Constitution, which safeguards freedom of speech and religion and separates church and state, has become increasingly broad. The American tradition avoids regulating speech, no matter how injurious or insulting it may be. Government does not interfere with what its citizens say. Moreover, the courts focus on the consequences of speech when addressing whether it should be protected under the law. In the United States, even threats or incitements to violence are punishable only where there is a risk that they will be followed by immediate action. Things are very different in Europe.

Although freedom of speech enjoys a hallowed status in the United States, in Europe it is but one among a number of related rights. Others, such as the right not to suffer affront or indignity, are in some instances considered more important than the right of free expression. That is particularly so in Germany, where the right of dignity is held higher than free speech, a fact that has spawned a series of restrictions on the latter, leading to convictions against artists and media for publishing satirical drawings depicting politicians as animals. Moreover, Germany has been able to push through framework agreements in the EU obliging member states to introduce new legislation against hate speech.

Excerpted from The Tyranny of Silence by Flemming Rose. Copyright © Cato Institute, 2014. All rights reserved. Download a copy of The Tyranny of Silence for $9.99 by clicking here.

Flemming Rose is a Danish journalist and author, and served as foreign affairs editor and culture editor at Jyllands-Posten. He is an international advocate for freedom of speech and regularly travels around the world to speak on the subject. In 2015 Rose was awarded the prestigious Publicist Prize from Denmark’s national press club and received the Honor Award for defending free speech from the Norwegian Fritt Ord Foundation. His website is www.tyrannyofsilence.net.

The Tyranny of Silence
By Flemming Rose
Cato Institute; 1 edition (May 7, 2016)
ISBN-10: 1939709997
ISBN-13: 978-1939709998
$13.35

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2 COMMENTS

  1. Excellent article except for one thing. The author obviously has no real knowledge of how the welfare state works or what it is.

    It is merely the provision of a safety net for people who, through no fault of their own, fall on hard times. No interference in people's lives by the state, no compulsion, just assistance when needed for those who then choose to use it. As should be obvious from that, it has no bearing whatever on the subject of this otherwise really first class article.

    • I respectfully disagree with your comment. The modern welfare state is not characterized solely by the provision of public assistance for the financially disadvantaged. The modern welfare state has arisen as our collective philosophy of the purpose and responsibilities of the government of a free state have evolved beyond the philosophy of governance that emerged from the European Enlightenment of the sixteenth and seventeenth centuries, and upon which the free democracies of Europe and the United States were originally founded. Adherents to that classical liberal tradition originally held that the role of the government in a free state was limited to protecting the rights of its citizens. During the late nineteenth and twentieth centuries a somewhat different philosophy of government emerged that maintained that the responsibilities of the government of a free states include not only protecting the rights of its citizens but also promoting the general welfare of its citizenry. It is the phrase "promoting the general welfare" that gives the welfare state its name, and the perceived responsibilities of the welfare state include not only the provision of a financial safety net, but also a great many other government actions, such as the establishment of a public education system, government subsidization and/or socialization of the national healthcare system, government patronage of the arts, public funding for scientific research, the creation of public transportation systems, etc. This much broader view of the role of government in a free state is neither inherently good nor bad, but it does necessitate a larger and more activist government intervening in the personal, social, and economic lives of its citizens to a much greater degree than would be required to simply protect their rights. The problems that have now arisen from the government regulation of free speech described in this article are a direct result of the western democracies embracing this more expansive view of the responsibilities of government in a free state, and thus it is entirely appropriate to characterize those issues as a product of, and perhaps even unique to, the modern welfare state.

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