Censored: How European “hate speech” laws are threatening freedom of speech
By Paul Coleman
Kairos Publications, €9.90/ $13.25 164 pages
Available in hardcopy & ebook
The residual philosophical position taken today about free speech – what can be said, when, and to whom – is that anything goes unless saying it is harmful in some way. The scope of that harm fluctuates from place to place, across time and culture.
No longer is it considered so contrary to public morals that taking God’s name in vain or blaspheming are punishable offences – at least, not in most First World countries – as, for better or for worse, the harm in blasphemy has lost its sting as faith in God has waned.
A healthy Western society today must instead have as wide a tolerance of speech as possible, in order to accommodate diverging and conflicting opinions and views, given the multicultural make-up of its citizen body and the presence of non-citizens.
Those endeavouring in science, economic policy-making, democratic politics, or marketing and sales techniques, for example, all depend on a broad scope of free speech for their activities. The presumption is in favour of speech, and any denial of speech must pass a difficult legal, moral and practical test.
So what, then, are the limits of free speech?
The author of Censored, Paul Coleman, is a British solicitor for the US organisation, Alliance Defending Freedom, based in Austria. Having his feet planted in continental Europe and North America, he is well-placed to view the diverging attitudes to free speech and hate crimes across the northern hemisphere.
Censored focuses on one side of the limits of free speech, so-called ‘hate speech’. Coleman decries hate speech as an ill-conceived concept, with no universally-accepted definition. A recent European Court of Human Rights factsheet notes that hate speech “can also be concealed in statements which at first glance may seem to be rational or normal”. Does hate speech depend on the actual words used, the utterer’s intent, the context in which he says it, or the reasonably-foreseen or likely outcome of the utterance? Or is it a blend of some or all of these factors?
Coleman rightly accepts that there can be restrictions on speech when used to disseminate malicious falsehood or disclose state secrets, but notes how different these restraints are to hate speech laws, which are :
[L]oosely worded and arbitrarily enforced. They only protect certain ‘groups’ and rarely require an actual victim. They are focused more on the listener’s response than the truth of the statement. In short, while ‘hate speech’ laws are a restriction on speech, they are a very different concept to other ‘pervasive and durable’ restrictions which most societies have accepted as being desirable.
He identifies six characteristics of hate speech laws. They are: vaguely worded, contain a large subjective element, do not necessarily require falsehood, rarely require a victim, often only protect certain people, are arbitrarily enforced, and often criminal in nature.
The first section of the book explores the development of hate speech legislation, germinating out of the horrors of the Holocaust.
Coleman deftly and succinctly considers the involvement of the Soviet negotiators in the framing of the Universal Declaration on Human Rights, and how two international legal instruments, the International Covenants on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, were prisoners of the political and ideological battles played between communist and democratic states, military dictators and NGOs.
Once hate speech language became vogue in international politics, domestic legislatures, liberal commentators and bureaucratic institutions became captured by this dynamic. In Europe, the implementation of laws to combat hate speech has generated disputes from local police investigations to appeals in supreme courts.
In the second section, Coleman notes over thirty examples of hate speech investigations, across 15 countries, and suggests that the enforcers of criminal law are stumbling when they are empowered to distinguish between acceptable and insulting and offensive views: “where does the greater risk lie in allowing citizens to speak controversially and offensively, or in allowing the state to censor what it considers to be controversial and offensive?”
After reviewing a dismal litany of cases, Coleman notes the harm of accusations of wrongdoing even if no criminal prosecution (let alone conviction results). For many, it is enough to be accused for a good reputation to be lost. Free speech – like reputations – can be a fragile construct: “Even in the absence of successful prosecutions, the overall effect will be a chilling of free speech that benefits those who seek to silence debate by stigmatization”, where “the process is the punishment”. Furthermore, hate speech is worse than libel or slander because, in most of the laws considered, truth is not a defence.
The unsurprising result of subjective, badly-drafted law making and uneven application, is that some are convicted and others acquitted on virtually the same facts. As Coleman notes, sloppiness of thinking has split over from domestic law-making that is not “clear, precise and not enforced arbitrarily” to court judgments that show the same lack of clarity as the cases they are criticising.
So where now for Europe’s hate speech laws?
In the third section, Coleman paints a depressing picture where European governments consider orthodox views on homosexuality, marriage, abortion or religion as hate speech, merely because they run counter to the contemporary grain. Mainstream views will be prohibited alongside the more extreme. With the advents of new classes of constructed sexuality, like cis-gendered and cis-sexual labels of transgender, holding to the ‘heteronormative worldview’ runs the risk of becoming stigmatised much as racism rightly is today. More and more people will feel insulted over ever-greater numbers of things, to the extent that “a culture will be formed where the phrase ‘you can’t say that’ is common place, if, indeed, it has not already arrived”. The media, workplace, universities and all corners of civil society will suffer the pernicious impact of encroaching legislation, and an alphabet soup of agencies and quangos will be developed to regulate, police and prosecute.
But the future is not necessarily a spiral towards Orwell’s 1984. Coleman points to specific campaigns like that in Britain against s.5 Public Order Act 1986, which outlaws ‘threatening, abusive or insulting behaviour’, where the government has just accepted it will not oppose the scrapping of this section. Europe may be a long way from the First Amendment’s protections of free speech, but there are good liberals willing to accept the dictum of a former federal judge with regard to free speech protections in the United States:
Speech is constitutionally protected – not because we doubt the speech inflicts harm, but because we fear censorship more.
Peter Smith is a lawyer in London. He has previously worked for a Conservative Member of Parliament, and has written for Mercatornet.com and The Commentator.
