The Tyranny of Silence

by Flemming Rose

  There were sharply divergent notions as to what was actually going on. One side insisted that free speech was under pressure: new diversity and new sensitivities were squeezing free debate. The other side claimed that Europe was now a place in which Muslims were subject to witch-hunts and persecution. There were calls to ban mosques, minarets, and traditional Muslim clothing for women: some likened that development to the plight of the German Jews in the 1920s. So how could anyone even claim that free speech was under fire?

  The fact that two such opposing views could exist side by side was a symptom of the crisis into which the welfare state had plunged. The culture of rights that had shaped the welfare state to begin with, and that had formed the basis of its steady growth for half a century, now threatened to undermine it completely. It was unable to contain the diversity and the internal disparities imposed on it by a multicultural society.19

  We were heading for a Europe driven by fear of its own shadow, a Europe wanting to protect itself against the new reality, rather than one able to create a framework for the free interplay of its citizens. Fear was undermining freedom—both for those who feared Islam and for those who feared insulting it.

  In the European welfare state—in which government reserves the right to interfere in people’s lives with reference to positive values, such as human dignity, security, and social harmony—freedom is not likely to be liquidated suddenly in the manner of the brutal dictatorship, where oppression is a visible constant, and opponents are rounded up in the dead of night. Rather, it will occur gradually and without fuss.20

  The grievance lobby in the UN, the European Union, and the human rights industry was directed by the notion that criminalization of racist utterances (so-called hate speech) would lead to racism being eradicated. They drew up a succession of reports urging member states to prosecute and punish perpetrators of hate speech to a much greater degree than before. The grievance lobby wanted the definition of racism expanded to encompass still more groups within society. They were on solid ground: the Convention on Racial Discrimination directed that member states adopt prohibitive legislation and generally take measures to eradicate hatred. The state was to educate and reeducate its citizens, an aim that appeared at once hysterical and ominous—and about as realistic as banning snow in Greenland. Yet it won immediate favor. Sentiments, not least those offended, took on primary significance and political clout. French expert on international relations Dominique Moïsi went so far as to speak of “the geopolitics of emotion.”21 The Cartoon Crisis was one terrifying illustration of what he meant.

  The ambition of the Convention on Racial Discrimination to cleanse society of bigotry accorded the state a role that, as Danish human rights lawyer Jacob Mchangama noted, appealed strongly to the political left.22 There was something rather utopian about the project, but more seriously, it gave government free rein to introduce censorship and, paradoxically, to oppress the very human rights it had originally been conceived to protect. Those efforts to eradicate hatred and racial discrimination encompassed two specific threats to freedom of speech.

  The first issued from the lack of a universally accepted definition of “hatred” in international law. Not even member states of the European Union were in accordance. Dictionary definitions of “hatred” highlight feelings of extreme antipathy or disapprobation and abhorrence. “Hate speech” is defined as utterances expressing hatred of, or intolerance toward, other social groups, particularly on the basis of race, gender, nationality, ethnicity, religion, or sexuality.23 But intolerance and hatred toward others may, in many contexts, be quite legitimate emotions. They may surface in any of us when confronted with those who commit violence, oppress women, persecute homosexuals, or indeed in any number of contexts involving gross injustice and abuse of power. Where is the dividing line between expressing hatred, abhorrence, or antipathy within the bounds of the law and doing so in such a way that it should be prohibited? There is no clear-cut answer, which opens the field for arbitrary interpretations endangering freedom of speech.24

  The second threat to freedom of speech arose from broadening interpretations of racism encompassing increasing numbers of social groups and types of speech. In Denmark, legislation against racial discrimination was introduced in 1939 to counter outrageous attacks on Jews, that, for example, they drank the blood of Christian children and other monstrous myths. Following the adoption of the Convention on Racial Discrimination, the scope of this so-called racism paragraph was successively widened, and sanctions tightened in 1971, 1986, and 1995, the aim being not merely to protect citizens against false accusations inciting hatred of specific groups, but increasingly to criminalize scornful and offensive speech regardless of their truth. Today, action may be taken against individuals expressing personal opinions, value judgments, and moral evaluations. After the law was widened to safeguard the sentiments of the homosexual community, a woman of Christian faith narrowly avoided conviction for publicly stating in a letter to the editor that she personally considered sex between homosexuals to be the most disgusting form of fornication.25

  The racism card was played left, right, and center. A ruling of the Danish Supreme Court in 2003 acquitted a woman of slander against populist leader Pia Kjærsgaard, after she said on the radio that she would be unwilling to be identified with Kjærsgaard’s “racist views.” That ruling followed a new, broader definition of “racial discrimination,” which was now “discrimination and oppression of, or merely dissociation from groups of individuals who may be of the same race as oneself.”26 On that count, vegetarians could be branded racist for dissociating themselves from meat eaters (or vice versa). Socialists were racists if they dissociated themselves from conservatives, and there was almost no limit on what kind of critical speech could be deemed “racist.”

  At least the woman was acquitted. The court thus ruled that calling a politician racist was not punishable by law. However, the new, wide definition of racism continued to be employed in calling for constraints on freedom of speech in other contexts. In 2010, a complaint was lodged against the head of Copenhagen’s police homicide squad for racism following a comment he made when a Romanian man randomly murdered a Norwegian flight attendant in a Copenhagen hotel. “The Romanians are without scruples. They’ll kill for a couple of hundred kroner. It’s a whole different culture,” the officer said.27 The context made it very clear that it was a comment made with specific reference to the case in question, and that no generalization was intended. The officer swiftly retracted his comment and publicly expressed regret if what he had said had been taken to apply to all Romanians. The case sparked lively discussion in the Danish media, demonstrating that free and open debate was by far the best way of regulating the bounds of freedom of speech in a democracy. Yet the officer in question was reported to the police for racism. What such tendencies will lead to may be rather difficult to predict. Perhaps, it won’t be long before we see media taken to court for racism on account of (authentic) headlines, such as “Mexicans Smuggle Cocaine in Sharks,” “Swedish Men Impotent,” or “Danes Enjoy Cocaine.”

  In today’s grievance culture, with its identity politics and cultivation of the victim, the grievance lobby has succeeded in shifting the fulcrum of the human rights debate from freedom of speech to the necessity of countering hate speech; from the individual pursuing individual liberties to the individual aggrieved by the liberties taken by others. That shift becomes counterintuitive, the logic increasingly absurd. Those aggrieved by free speech are defended, while those whose speech is perceived as offensive to such a degree that they are exposed to death threats, physical assault, and sometimes even murder are deemed to have been asking for it: “What did they expect, offending people like that?”

  When we focus on nondiscrimination and equality, and aim to empower the aggrieved, tolerance is no longer about the ability to tolerate things that we don’t like; it becomes the ability to keep quiet and refrain from saying things that others may dislike. That is the bas
ic, and very flawed, premise underlying the much-touted phrase “Freedom of speech is not the same as freedom to offend.”

  Following the collapse of the Berlin Wall and the march of freedom through Central and Eastern Europe, a number of European countries have adopted new insult codes. In Norway and the Netherlands, measures have been taken to replace outdated blasphemy codes with new legislation to safeguard groups and ideas central to personal and group identity. So far, legislators in the two countries have not succeeded, but the idea is being pushed.

  British sociology professor Steven Lukes mapped out the grievance fundamentalists’ ideal society in his novel The Curious Enlightenment of Professor Caritat, in the author’s words “a comedy of ideas.”28 The novel is about Nicholas Caritat, a professor of the Enlightenment, who, after being rescued from prison in the military state of Militaria, is assigned the task of journeying to find the best of all worlds. On his travels, he passes through Utilitaria, Libertaria, and Proletaria, but ends up in Communitaria, a society based on the notion of multiculturalism and equality of all its 34 ethnic groups and 17 religions.

  Communitaria was once an ethnically and religiously homogeneous society. Then came the great wave of immigration. Individual rights no longer exist. The only right acknowledged is the right of the various communities to be respected.

  People are forced to remain within the religious and ethnic communities to which they belong, and marriage across community borders is frowned on. Individuals attempting to establish new communities are ostracized and branded as rootless cosmopolitans. Communitaria is founded on the so-called Principle of No Offense, manifest throughout its legislation. Freedom of speech does not exist. Indeed, it is a punishable offense on the grounds that speaking freely involves the risk of offending others.

  The citizens of Communitaria are constantly on their guard to defend freedom, that is, the freedom of others from insult. For that reason, humor and satire have been abolished. In fact, no one knows what they are, so when a reviewer deems a rock opera to be a satire dealing with the fanaticism of faith and the intolerance of ethnicity, a need arises to investigate the concept. Thus, the rock star composer discovers to his horror that satire seeks to expose human folly and malice through ridicule.

  The religious and ethnic communities of Communitaria demand that the composer dissociate himself from his work and apologize in public. Subsequently, he is forced into hiding when it transpires that his satire is deemed sacrilegious, the worst of all crimes in Communitaria, and the only one commanding the death penalty on account of its violating the absolute right of communities to be respected.

  That prompts Professor Caritat to investigate the extent to which Communitaria is familiar with tolerance, a concept that he considers would make it easier to find a solution to the problem. Tolerance, though, is not practiced, not least because it entails the acceptance of offensive speech on the part of others, and why should one accept that? Why, indeed, should it be necessary at all to offend anyone else?

  Citizens of Communitaria’s religious and ethnic communities are quite simply unable to tolerate a lack of respect for what they hold to be sacred. “Why?” Professor Caritat inquires again in a last-ditch attempt to plead the case of tolerance, a concept in which he has conducted considerable scholarly research.

  “The problem lies in the giving of offense. What you call tolerance, so far as we understand it, is to accept being subjected to an offense without objecting; respect is refraining from causing it. Our whole society is committed to the second, not the first,” explains the chairman of one of Communitaria’s parliamentary groups.

  Does that sound familiar?

  In the spring of 2006, I visited liberal law professor Ronald Dworkin, an ardent advocate of free speech, in New York. He had recently published a noteworthy commentary on the Muhammad cartoons in the New York Review of Books titled “The Right to Ridicule.” “In a democracy no one, however powerful or impotent, can have a right not to be insulted or offended. That principle is of particular importance in a country that strives for racial or ethnic fairness,” Dworkin wrote.29

  Sitting in his office on Washington Square, I asked him to expound on the idea. “The democratic process is founded on the idea of freedom of speech,” Dworkin told me.

  In a democracy we discuss things and then vote, and we expect those who lose the discussion and the vote to accept the decision of the majority and uphold the laws it has adopted. That’s quite an extraordinary thing to ask of people. My conviction is that the only way we can ask that is if everyone in the democratic process has had the chance to put forward their arguments in exactly the way they wish. If we suppose one group has the special right not to be ridiculed, what that automatically entails is that others are deprived of their right to voice their opinions about that group.30

  “Why can’t we just ask people to word their criticism politely and respectfully, avoiding scorn, mockery, and ridicule?” I asked him.

  “We can’t do that, because scorn, mockery, and ridicule are specific modes of expression, which present their content in such a way that it cannot be duplicated less offensively without that content being changed,” he said. “We cannot force some other taste on people, or some different standard as to how they should voice their opinions in the public debate, at the same time as we ask them to accept the decisions of the majority.”

  In contrast to Europe, the United States has not legislated against hate speech. Throughout the 20th century, the limits on what individuals in America can say without running the risk of prosecution have gradually been pushed back. The U.S. Supreme Court’s interpretation of the First Amendment to the Constitution, which safeguards freedom of speech and religion and separates church and state, has become increasingly broad.31 The American tradition avoids regulating speech, no matter how injurious or insulting it may be. Government does not interfere with what its citizens say. Moreover, the courts focus on the consequences of speech when addressing whether it should be protected under the law. In the United States, even threats or incitements to violence are punishable only where there is a risk that they will be followed by immediate action. Things are very different in Europe.

  Although freedom of speech enjoys a hallowed status in the United States, in Europe it is but one among a number of related rights. Others, such as the right not to suffer affront or indignity, are in some instances considered more important than the right of free expression. That is particularly so in Germany, where the right of dignity is held higher than free speech, a fact that has spawned a series of restrictions on the latter, leading to convictions against artists and media for publishing satirical drawings depicting politicians as animals.32 Moreover, Germany has been able to push through framework agreements in the EU obliging member states to introduce new legislation against hate speech.33

  Several recent incidents in Europe serve to illustrate the difference further.34 In July 2007, four British Muslims were sentenced to long prison terms for inciting racism and murder in connection with protests against the Muhammad cartoons outside the Danish embassy in London in February 2006. One of the men convicted had put on a belt similar to those worn by suicide bombers, while placards urging the killing of those who had offended Islam were clearly visible in press photos of the event.35 It is hardly likely that the four men would have been convicted in the United States, since none of the individuals being threatened (I was among them) was within reach at the time. There was no clear and present danger.

  In October 2008, the European Court of Human Rights dismissed as being without merit a complaint by French cartoonist Denis Leroy, who six years previously had been convicted of glorifying terrorism because of a cartoon he published on September 13, 2001.36 It depicted the Twin Towers in New York with the caption “We have all dreamt of it . . . Hamas did it.” From an American point of view, that utterance was horrifically offensive, yet in the United States, it would hardly have been brought to court at all. Instead, the cartoon would have
been condemned by civil society in the media.

  A third example again involves the European Court of Human Rights. In 2004, the court dismissed an appeal by Mark Norwood, a member of the British National Party who had been convicted of insulting Muslims after putting up a BNP poster in his window showing the Twin Towers in flames, with the words “Islam out of Britain—Protect the British People.” The Muslim symbols of a crescent and star were also shown, inside a prohibition sign.37 In the United States, the Constitution would most likely have protected Norwood’s freedom of expression, whereas in Europe his words were regarded as hate speech and made him liable to prosecution.

  Even racist hate speech is permitted in the United States, though like Europe’s, the country’s history is a painful one, encompassing slavery, civil war, lynching, and widespread discrimination against black Americans. Nazis have the right to demonstrate in neighborhoods housing Holocaust survivors; the Ku Klux Klan is free to set its crosses ablaze in black neighborhoods; and critics can burn the American flag, or indeed that of any other country, pretty much as they please.38

  The history of free speech in the United States undermines those who in Europe insist on a causal link between legalization of hate speech on the one hand and racist violence and killings on the other.39 Throughout the 20th century, the United States saw a gradual relaxation of restrictions on free speech; nonetheless, at the beginning of the 21st century, racism is far less of a problem than it was a hundred years ago.