The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Censorship Envy
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?"
[1.] To offer one example, say a public university bans speech that expresses support for Hamas attack on civilians, and a court upholds that (perhaps on the theory that this supposedly creates a "hostile educational environment" for Jewish or Israeli students).
It seems to me quite likely, and psychologically understandable, that this will create an impetus for greater moves to ban other speech, such as support for Israeli retaliatory strikes against Hamas or other future attackers. 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.
Indeed, I already often hear it as a defense for restrictions on pro-Hamas speech: In practice, some universities already do various things to try to punish speech that's supposedly racist or sexist or anti-gay or anti-trans or what have you. Isn't it only fair that they likewise punish speech that defends the killing of Jews? Yet if that argument for comparable speech suppression is accepted, why would we think it will stop there?
But beyond this, even if the envy doesn't lead to broader speech restrictions, that itself is dangerous to society. Say that, even if the ban on pro-Hamas speech is allowed, a move to similarly ban pro-Israeli-retaliation speech fails. The pro-Israeli-retaliation speech will then likely rankle many Americans even more, creating more offense and more division.
Right now, when people are deeply offended by various kinds of speech, 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 speech you like as much as you hate the speech they like, 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 some offensive viewpoints are banned but other offensive viewpoints are allowed? "We who have the support of the majority get to suppress symbols we hate, but you in the minority don't"? "Our hatred of certain speech is reasonable but your hatred of other speech is unreasonable"?
Yes, it's true, you can argue for various distinctions, such as between speech defending the purposeful killing of civilians and speech defending the merely knowing killing of civilians incidental to attack military targets. (I actually agree with such a distinction on the merits, though not as a basis for banning some speech.) But are Americans on the other side of these debates from you likely to be persuaded by these arguments? Are those arguments likely to lead to more domestic peace and stability, or less?
[2.] This is also one of the reasons (though not the only one) why I oppose European-style "hate speech" laws. One recurring argument from Muslims who want Mohammed 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:
Section 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 aids and abets thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding one year.
Section 135 a. Any person who wilfully or through gross negligence publicly utters a discriminatory or hateful expression shall be liable to fines or imprisonment for a term not exceeding three years…. The use of symbols shall also be deemed to be an expression….
A discriminatory or hateful expression here means threatening or insulting anyone, or inciting hatred or persecution of or contempt for anyone because of his or her (a) skin colour or national or ethnic origin, (b) religion or life stance, or (c) homosexuality, lifestyle or orientation.
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. 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
- "Sorry, the laws don't protect you,"
- "Okay, we'll enforce the laws to suppress speech that you perceive as insulting," or
- "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"?
(Option (c) is 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 (1971) to reject the argument that some commentary (in that case, wearing a jacket saying "Fuck the Draft") 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.
[T]he principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.
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.
(This is an update of an argument I've made before, but that seemed worth repeating.)
