In a recent Washington Post essay, Erik Bleich, a professor of political science at Middlebury College, says "French hate speech laws are less simplistic than you think." He is looking at me (among others). Specifically, Bleich says I was "incorrect" when I faulted France's government for "endorsing the illiberal idea that people have a right not to be offended." There is no such right in France, Bleich says, because people can say offensive things without being fined or going to jail, provided they do not violate specific rules. For instance, they are allowed to offend Muslims, as Charlie Hebdo's cartoonists did with their depictions of Muhammad, as long as they do not cross the line into insults, defamation, or incitement to hatred, discrimination, or violence.
Well, yes, but one of my main points in the column to which Bleich refers is that the line between permitted and prohibited speech is awfully fuzzy, which leads to self-censorship and invites arbitrary, unpredictable enforcement. Take novelist Michel Houellebecq's 2001 comment that Islam is "the stupidest religion." The courts decided that was OK because Houellebecq was attacking a set of ideas, not Muslims as people. But it is hardly a leap to conclude that Houellebecq was calling Muslims stupid, which certainly sounds like an insult based on religion. Or consider the Jyllands-Posten cartoon that showed Muhammad wearing a bomb-shaped turban, which was reprinted by Charlie Hebdo. Was that an attack on Muslims in general, or merely on Muslim fundamentalists? French judges disagreed.
Regardless of whether those cases were rightly or wrongly decided, the fact that people can be hauled before a court and forced to explain why their words or images did not violate a vague, highly subjective prohibition tends to put a damper on their willingness to express their views. Bleich, author of a book called The Freedom to Be Racist?, seems oblivious to this chilling effect, suggesting that the rarity of jail terms and the possibility of acquittal shows the French system is working pretty well:
According to official statistics, in 2011 there were 359 convictions that involved hate speech, with the vast majority (293) involving public insult toward an individual, such as calling someone a "dirty Jew." Most penalties involved fines or suspended sentences, with 11 cases resulting in jail terms. My research-in-progress shows that among all decisions rendered by France's highest court between 1972 and 2012, 58 percent have tilted toward speech restrictions while 42 percent upheld free speech. Outcomes have thus been more balanced than one-sided.
Another way of putting it is that France's highest court generally rules against free speech. But regardless of the courts' track record, it is the very possibility of such inquisitions that offends freedom of expression and inhibits debate. "Our marketplace of ideas would be enriched by fewer one-sided proclamations about free speech," Bleich writes, "and a greater number of informed discussions about how countries like France pursue the difficult balance between protecting free speech and restricting hate speech." Many of us argue that governments should not pursue this "difficult balance" at all, not just because it is impossible to achieve but because it chills speech, sows resentment and division, undermines the rule of law, and punishes people for conduct that violates no one's rights.
[Thanks to Marc Sandhaus for the tip.]
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