The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
1. One reason I broadly oppose governmental restrictions on the expression of ideas—even obviously bad, dangerous, and offensive ideas—is the phenomenon I call "censorship envy": The common reaction that, "If my neighbor gets to ban speech he reviles, why shouldn't I get to do the same?"
To offer one example, say Congress and the states pass a constitutional amendment allowing a ban on flag burning. It seems to me quite likely, and psychologically understandable, that this will push for greater moves to ban other speech, such as display of the Confederate flag. Such a misplaced desire for equality of repression is a powerful mental force, and it's one way in which narrow speech restrictions can end up leading to broader ones.
But beyond this, even if the envy doesn't lead to broader speech restrictions, that itself is dangerous to society. Say (as is likely) that, even if an anti-flagburning amendment passes, any move to similarly ban the Confederate flag fails. Display of the Confederate flag will then likely rankle people even more, creating more offense and more division.
Right now, when people—mostly blacks, I suspect—are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many people hate flag burning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."
Yet what would we say when flag burning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we hate, but you in the minority don't"? "Our hatred of flag burning is reasonable but your hatred of the Confederate flag is unreasonable"?
If you were black and saw the Confederate flag as a symbol of slavery and racism—and, rightly or wrongly, millions of people do—would you be persuaded by these arguments? Would you feel better about America because of them?
Or conversely, say that a "hate speech" exception was recognized: Censorship envy would create considerable pressure to likewise create an exception for speech seen as expressing anti-American hatred. Indeed, as I noted before, former congresswoman Jo Ann Emerson has already called for an anti-flag burning amendment partly on the grounds that "while the First Amendment protects free speech, it offers no protection for hate speech"—a legal error, to be sure, but if "hate speech" were indeed unprotected, the congresswoman's argument would likely have a great deal of public traction.
2. This is also one of the reasons (though not the only one) why I oppose European-style "hate speech" laws, bans on Holocaust denial, bans on praising terrorists, and the like, and why I think the recent French crackdown on speech that praises the jihadist slaughters is misguided.
One recurring argument from Muslims who want the cartoons legally suppressed is that European laws prohibit other kinds of speech offensive to other groups—for instance, Holocaust denial, which is often restricted chiefly because it's seen as implicitly or explicitly anti-Semitic—and that Muslims should get the same treatment. In practice, those other prohibitions don't get used that often, and European speech is actually more free than the laws would suggest. Nonetheless, the laws' presence does make possible the argument I describe. And I suspect it does make many Muslims feel even more aggrieved than they would be by the cartoons themselves, since they are also now aggrieved by what they see as discriminatorily enforced laws.
Consider, just as one example among many, Norwegian Penal Code §§ 135 & 135a:
§ 135. Any person who endangers the general peace by publicly insulting or provoking hatred of the Constitution or any public authority or by publicly stirring up one part of the population against another, or who is accessory thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding one year.
§ 135 a. Any person shall be liable to fines or imprisonment for a term not exceeding two years who by any utterance or other communication made publicly or otherwise disseminated among the public threatens, insults, or subjects to hatred, persecution or contempt any person or group of persons because of their creed, race, colour or national or ethnic origin. The same applies to any such offensive conduct towards a person or a group because of their homosexual bent, life-style, or inclination.
These belong to the family of restrictions on "hate speech" and "incitement to hostility" that Europeans (and some Americans) sometimes praise as a model "reasonable" alternative to America's speech protections. But look how broad they are: If you "endanger the general peace" by "publicly stirring up one part of the population against another," you can go to prison. If you disseminate a communication that "insult[s]" "any group of persons because of their creed," you can go to prison. My reprinting the original Mohammed cartoons, for instance, would potentially be a crime.
Now many Muslims are offended enough by the cartoons on their own—but at least in America we can tell them to join the club: American Christians have no legal protection from anti-Christian speech, American Jews have none from anti-Semitic speech, American blacks have none from racist speech, Americans generally have none from anti-American speech. What can Norwegians tell them, other than (1) "Sorry, the laws don't protect you," (2) "Okay, we'll enforce the laws to suppress speech that you perceive as insulting," or (3) "These are bad laws, we're glad that they've rarely been used, we're sorry they were ever enacted, and we are going to repeal them right away" (my preferred suggestion, though not one likely to be implemented, and one that would still be understandably offensive to many Muslims, since the laws' repeal would have been triggered by speech that's offensive to Muslims)?
3. And of course censorship envy is such matters is hardly limited to Muslims. Consider this 2008 Daily Mail (UK) story:
A leading art gallery is being taken to court over claims that it outraged public decency by displaying a statue depicting Christ with an erection…
A private prosecution has now been launched … [claiming] that the gallery has both offended public decency and breached Section 5 of the Public Order Act 1986.
The maximum penalty for outraging public decency is six months' imprisonment and a £5,000 fine.
The documents claim that the foot-high sculpture was 'offensive and disgusting' and 'likely to cause harassment, alarm or distress to Christians and those of other faiths'….
The prosecution has been launched by Emily Mapfuwa, 40, an NHS administrator from Brentwood, Essex, who read about the exhibition in newspapers. 'I don't think this gallery would insult Muslims in this way, so why Christians?' she said….
I think this is pretty vulgar stuff, but should clearly be protected against legal punishment. It would be in the United States, and it ought to be in other democracies—religions and religious figures are proper subjects for debate and commentary, both rational verbal debate and commentary, and the subtle commentary that can be offered by art.
I also think the Supreme Court was right in Cohen v. California to reject the argument that some commentary can be barred with no free speech problems on the grounds that it's vulgar, or offensive because of its form rather than its content: There are no legally administrable lines—at least of the sort that are likely to survive pressure for expansion—that would distinguish impermissibly vulgar criticism from permissible criticism. Fortunately, as best I can tell, English courts rejected the complaint. (Whatever one might say about the propriety of huge discretionary grants going to galleries that include offensive speech, the issue here is criminal punishment, not withdrawal of discretionary funds.)
And the incident helps illustrate the force of censorship envy. When speech hostile or insulting towards one religion or symbol is suppressed by government action (as has been urged by many in Europe and Canada with regard to the Muhammad cartoons), or by self-censorship in the face of threatened violence, what happens when other groups are similarly offended? Their sense of outrage—and of entitlement to similar suppressive power—is increased, because they are now outraged by the perceived unequal treatment as well as by the original offense.
So again either the other speech will be suppressed, too. Or the other speech won't be suppressed, in which case the offended groups will become even more offended—and so an attempt to prevent offense and maintain social harmony (which is how the original restriction is often justified) will have exacerbated offense and reduced social harmony.