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Free Speech

"The Global Hate-Speech Conundrum"


A woman is arrested during a pro-Palestinian demonstration at the Freie Universität Berlin, May 7, 2024. (AP Photo/Markus Schreiber, used pursuant to license from AP Photo)
[A woman is arrested during a pro-Palestinian demonstration at the Freie Universität Berlin, May 7, 2024. (AP Photo/Markus Schreiber, used pursuant to license from AP Photo)] ((AP Photo/Markus Schreiber, used pursuant to license from AP Photo))

A very interesting item by Prof. Kevin Cope (Virginia), which I'm very happy to be able to pass along:

The recent mass arrests of pro-Palestinian demonstrators have left many asking how such suppression can be justified in a free society. Yet—despite some clear instances of excessive force—U.S. legal tolerance for protests is a global outlier, even among liberal democracies. Since October, U.S. public officials and college administrators have condoned most anti-Israel protests, including (for a while) long-term encampments that violate university rules. Many have provided police protection, even while some protestors voiced support for Hamas's October 7 massacre, lobbed arguably anti-Semitic insults, or called for further violence against Israeli Jews.

In Europe, officials are responding quite differently.

In the days and weeks after October 7, with the Israel Defense Force's retaliation in Gaza well underway, the Eiffel Tower was lit up with the Star of David, and crowds spontaneously sang the Israeli national anthem. Meanwhile, the French Interior Minister instituted a ban on all pro-Palestinian protests.

In Germany, 10,000 joined a pro-Israel rally, while public expressions of pro-Palestinian messages as benign as "stop the war" were prohibited. Berlin police announced that chanting "From the river to the sea, Palestine will be free" was a criminal offense. In Berlin schools, Palestinian flag colors and the kaffiyeh—a traditional Middle Eastern scarf now associated with Palestinian nationalism—were banned, while other ethnic apparel was permitted. The first pro-Palestinian demonstration was finally permitted in Hamburg in late October 2023, but with a limit on Palestinian flags and a prohibition on questioning Israel's right to exist. And similar to Germany, the British Home Secretary directed police that "From the river to the sea … " may "amount to a racially aggravated … public order offence," in some contexts, punishable by imprisonment.

While every liberal democracy in the world claims to guarantee free expression in some form, the United States is essentially the only country where the government may not "take sides" on contentious issues by censoring expression based on the speaker's viewpoint. As the post-October 7 examples show, many European countries have indeed taken a side in the public discourse over the Israeli-Palestinian conflict—in a way that might surprise many American observers: calls for a ceasefire and an end to what they see as an Israel-perpetrated genocide are criminally prohibited hate speech, while support for continued attacks is constitutionally protected. This strange result illustrates the unintended consequences of allowing governments to pick and choose which beliefs are unlawful "hate speech" and which are fair criticism.

The notion—dominant the in most of the world—that hateful speech is not "free speech" dates at least to the global post-World War II reckoning with Nazism. Under the paradigm of "group libel," scholars and activists called for new laws prohibiting expressing hatred towards any race or religion. While the laws would cover all races and religions, as well as other protected categories, it's understandable that fighting anti-Semitism was mostly driving the efforts. With some national constitutions, like Germany's, citing human dignity as a paramount constitutional value, most countries soon followed suit.

Those efforts continue to this day: "As a matter of principle," said UN Secretary-General António Guterres in 2019, "the United Nations must confront hate speech at every turn." Indeed, in recent years, countries such as Brazil, Scotland, France, Germany, and South Africa have enacted or introduced new or expanded hate-speech laws that cover online speech or gender identity. But hate speech is notoriously hard to define, and these systems often give wide latitude to officials to decide what these terms even mean and who should be prosecuted, discretion which officials often use in inconsistent and unpredictable ways.

While hate-speech prosecutions in Europe and Canada often target speech criticizing Islam, demonizing immigrants, or questioning transgender rights, Italy has also prosecuted speech opining that the Pope would end up in hell, and Poland has prosecuted a pro-life activist for the (essentially true) claim that a pro-choice advocate was "on the payroll" of "the abortion and contraception" industry. In fact, European national criminal laws authorize imprisonment for acts a broad as: public insults or mockery (Austria); insulting a religious object in a religious space (Belgium); openly insulting any foreign nation (Denmark); and publicly and deliberately insulting a group of people because of their race, their religion, or belief (Netherlands).

The United States took a different path during the twentieth century. Viewpoint-based restrictions are almost never allowed under the U.S. Constitution, even when pertaining to so-called "low-value" speech forms. U.S. courts have consistently rejected the argument that some speech can be categorically banned simply because it is hateful or disrespectful. From the 1960s onward, the Supreme Court has even given First Amendment protection to things like a swastika-brandishing neo-Nazi march through a Jewish community; and it has held that, even within categories of punishable speech (such as "fighting words"), the government generally can't single out racist or otherwise bigoted speech for extra punishment.

How governments are responding to Israel-Gaza protests illustrates these radically diverging constitutional commitments to viewpoint neutrality. European national officials defended some of these pro-Palestinian restrictions primarily on public-order grounds more than stifling hate. But even so, the double standard implies that they view much of anti-Israeli speech as inherently anti-Semitic, and therefore, beyond the pale. This leads to a paradox, in which criticizing Muslims or Arabs as a group can constitute unlawful hate speech, but many expressions of support for Islamic-Arab groups are also prohibited, because of the threat that the government thinks those groups pose.

And yet, self-proclaimed antiracist activists have fought hard for the sort of hate-speech regulations that enable these restrictions—activists who link Palestinian marginalization to broader struggles for decolonization and against structural racism. For instance, one key political goal of the minor left-wing Dutch party, BIJ1, is Dutch recognition of Palestine as a sovereign state. At the same time, one of BIJ1's core objectives is expanding criminal hate-speech laws—even as existing such laws are being used by various national governments to muzzle support for a Palestinian state. Thus far, this irony seems to have been lost on most.

These examples offer a cautionary tale: When empowering the government to decide which beliefs are illegitimate, future policymakers may not use that power in ways you like or anticipate. They may even decide that your own viewpoints are the illegitimate ones—as with the song of South African anti-apartheid activists, "Shoot the Boer (i.e., white farmer)"; gender-critical feminists' insistence that natal sex is critical to sexual orientation; and more recently, Palestinian advocates' calls for a ceasefire and a "free Palestine."

Scholars and activists celebrating new and stronger hate-speech laws might therefore consider Justice Hugo Black's 1952 reaction to a (now largely discredited) decision upholding a conviction for disparaging Black Americans: "If there be minority groups who hail this [development] as their victory," he wrote, they should contemplate Pyrrhus of Epirus's observation: "Another such victory and I am undone."

Kevin Cope (@KevinLynnCope) is an Associate Professor of Law and Public Policy at the University of Virginia, where he teaches Comparative Free Speech Law and serves as co-editor of the Oxford Handbook of Comparative Immigration Law.

UPDATE: The "The United States took a different path …" paragraph was revised slightly to clarify the holding of R.A.V. v. City of St. Paul.