It only takes a few minutes of browsing internet comments for one to observe just how ingrained the concept of “free speech” is in American culture. It is a buzz term that permeates the current nationwide debate about whether or not “coddled” college students’ demands for safe spaces and trigger-warnings violates it. While the freedom of speech clause of the First Amendment does protect Americans from laws abridging freedom of speech, in reality, things are less clear cut. Numerous Supreme Court Cases have demonstrated that the way speech is protected in the United States is far more complicated than giving citizens the right to say whatever they want under any circumstances. Furthermore, the right has drastically evolved over many decades.
Nonetheless, reverence of the concept of free speech is at the heart of American culture, and separates the US from many other liberal democracies that in most regards are structured fairly similarly. The current standard for ruling on free speech cases in the United States is based on the doctrine of viewpoint neutrality. Brown political science professor Corey Brettschneider defines viewpoint neutrality as “[requiring] the state to not treat speech differently based on a speaker’s political or philosophical opinions.” While to most Americans the idea that the state should abstain from taking a side seems like an obvious norm, citizens in other countries like France might find it just as obvious that the government should prioritize protecting citizens from hate speech. Each system comes with many advantages and disadvantages that are difficult to rank and compare. Perhaps the best way to reconcile protecting free speech with combatting hate speech is to strike a compromise between the two approaches.
In 2011, the French government prosecuted hate speech 359 times, and 293 of those involved insulting an individual. 11 of the 359 convictions resulted in jail time. Famous French actress Brigitte Bardot, for instance, has faced trial five times for “inciting racial hatred” by making controversial (i.e. bigoted) statements about Muslims, such as that they are “destroying our country.” The French laws that indict Bardot punish her for expressing a certain political opinion, which clearly violates the doctrine of viewpoint neutrality. While Middlebury political science professor Erik Bleich points out that these charges were not for “deriding Islamic practices” but rather for “defaming and for provoking hatred against Muslims themselves,” an American might have a hard time imagining the enforcement of such a law here. Most of Trump’s campaign funds would have to go towards paying his legal fines; his claims that Arab Americans cheered on 911 attacks, that many Mexican American immigrants are criminals and rapists, and that Muslims should be banned from immigrating to the United States solely on the basis of their religion could all feasibly be grounds for legal action in other countries with stricter speech laws. While speech that might cause a “clear and present danger” is banned in the United States, there is a much narrower margin in what can be considered as such. In the 2003 Supreme Court case Virginia v. Black, for instance, the burning of a cross was determined constitutionally allowed so long as there is no direct intention to intimidate.
France also bans Holocaust denial and “insult, defamation, or provocation based on sex, sexual orientation, or handicap.” While from an American perspective this seems dangerously close to the government dictating how citizens must think, one could easily counter argue that in French law, pragmatically protecting groups from hate speech is rightfully valued more highly than protecting the theoretical concept freedom of speech. And when it comes to other liberal democracies, it seems that the United States, and not France, is the outlier. In 2007, the European Union passed legislation that made denying the Holocaust punishable by jail sentence. Granted, the legislation gave countries that did not already have a ban against Holocaust denial the option of not enforcing the law, but the fact that those countries are presented as the exception, and not the rule, shows the stark difference between the European and American approaches to free speech.
The law punishes any individual for “denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes.” This opened up the European Union to the tricky task of defining what counted as “genocide.” Under the law, only “genocides that fall under the statutes of the International Criminal Court in The Hague,” such as the Holocaust and Rwandan massacre, count as such. Some formerly communist Baltic states argued that denial of the massacres committed by Stalin in Soviet Russia should also be recognized, but the European Union refused to categorize neither it nor the Armenian genocide as genocide for the purpose of the law. In this case, it seems dangerous to task states with defining genocide when denying such is punishable by jail time, and it means that some tragedies like the Holocaust are legally afforded more value than others.
The more active a role the state plays in distinguishing what speech is hateful enough for punishment, the greater the stakes are that they get it right. As classic political theorist John Stuart Mill pointed out, one of the major issues with allowing censorship of thought is that it assumes infallibility. It is dangerous to give states the power to make certain viewpoints illegal, and even jail those who express them, because there is always the danger that the states might jail the wrong people.
However, this does not mean that there is no room for states to take a stand against hateful behavior. Those who consider the United States’ approach to free speech too accepting of hate speech should consider Professor Brettschneider’s theory of “value democracy.” Under this doctrine, citizens are free from coercive punishment for expressing certain viewpoints, but the state has a moral obligation to use its expressive capacities (often in the form of funding) to defend and uphold viewpoints that value equality and criticize hate. This seems to be the only way for liberal democracies, like the US, to have their speech cake and eat it, too.