American Enterprise Institute, DC
June 24 2006

Illiberal Europe

By Gerard Alexander
Posted: Friday, June 23, 2006

Post-World War II anti-Nazi speech laws have increased in scope over
the past sixty years. Instead of silencing extremists, however, the
laws reduce political debate in Europe and often punish mainstream
politicians and parties.

On February 20, an Austrian court sentenced the notorious British
writer David Irving to three years in prison for denying in a 1989
speech that Auschwitz contained gas chambers. Many American observers
had mixed reactions. They saw Irving as a loathsome anti-Semite but
were uncomfortable with the thought of a person serving time behind
bars for something he wrote or said, no matter how noxious.
Journalist Michael Barone probably spoke for more than a few when he
said that he "shuddered" at the news of Irving’s imprisonment, "yet I
can understand why Austria, like Germany, has laws that criminalize
Holocaust denial and glorification of Nazism. History has its
claims–heavy ones, in the cases of Germany and Austria." In other
words, criminalizing speech might not be the American way of doing
business, but it’s understandably Austria and Germany’s way of
dealing with their unique Nazi past.

The trouble is that Austria’s anti-Nazi legislation is the tip of an
iceberg of political speech laws across Europe. Of course, all
governments restrict some speech. But free expression is so
foundational to democracy that there is usually a strong bias against
restricting speech unless it poses a compelling and even imminent
danger to others. The most pervasive and durable restrictions meet
that test, applying to things like child pornography, false
statements that result in demonstrable harm (defamation), the
exposure of national security information, commercial fraud, and the
proverbial shouting of "Fire!" in a crowded theater.

In addition, European countries have never had America’s strong
free-speech tradition. Nevertheless, three disturbing trends now
underway in Europe together represent the greatest erosion of
democratic practice in the world’s advanced democracies since 1945.
First, anti-Nazi laws are being adopted in places where neo-Nazism
poses no serious threat. Second, speech laws have been dramatically
expanded to sanction speech that "incites hatred" against groups
based on their religion, race, ethnicity, or several other
characteristics. Third, these incitement laws are being interpreted
so loosely that they chill not just extremist views but mainstream
ones too. The result is a serious distortion and impoverishment of
political debate.

After 1945, Germany in particular passed strict anti-Nazi laws,
making it illegal not only to form a neo-Nazi party, but also to
champion Nazi ideology, downplay Nazi crimes, print Mein Kampf, or
even air the Nazi musical anthem, the "Horst Wessel" song. At the
time, many believed that these restrictions met the test of averting
immediate danger. Given what had happened between 1933 and 1945, it
seemed airing pro-Nazi or anti-Semitic views was the equivalent of
shouting "Fire!" in the crowded theaters of Austria’s and Germany’s
troubled cultures. As it turned out, neo-Nazis proved too marginal
even to come close to posing a serious danger to Germany or Austria’s
new democracies, with real neo-Nazis never winning even 5 percent of
the vote. So the necessity for these restrictions became less and
less clear with time.

But instead of being pared back, anti-Nazi legislation spread. Laws
criminalizing Holocaust denial or minimization were adopted well into
the 1990s in France, Switzerland, Belgium, Spain, and other European
countries (and several countries outside Europe). What these laws
could accomplish was unclear, since they were adopted when
neo-Nazism’s prospects seemed more remote than ever. In all these
countries, including Germany and Austria, governments do not really
have to ban neo-Nazis; voters do it for them through indifference.
Nonetheless, anti-Nazi laws have proved uncontroversial, maybe
because their sanctions fall on unsavory figures from Europe’s
anti-Semitic fever swamps.

This is unfortunate, because anti-Nazi laws gradually expanded to
cover other historical events. In 1993, Bernard Lewis, the eminent
Princeton historian of the Middle East, was asked in an interview
with Le Monde about the mass murder of Armenians in Turkey during
World War I. He readily acknowledged that terrible massacres took
place but questioned whether the murders were the result of a
predetermined–that is, genocidal–plan. That conclusion brushed up
against French laws that now prohibit denial of more crimes against
humanity than just the Holocaust. Several activist groups in France
filed complaints. Two civil and one criminal suit were dismissed, but
Lewis was found guilty in another civil suit and condemned by the
court for having not been "objective" regarding events that the
European Parliament and other bodies had officially certified as a
"genocide."

The expansion of the speech laws beyond the Holocaust is revealing.
Especially once it became evident that neo-Nazis were politically
marginal, it was unclear exactly what risk Holocaust deniers posed.
An alternative interpretation is that bans on denial were never
really about averting the menace of Nazi revivalism. They were
motivated instead by the fact that good people were offended by
Holocaust denial. That this is really what is at work is confirmed by
laws prohibiting denial of events like the Armenian murders–cases
that pose no risk of old genocidal agendas’ being revived.

So genocide-denial laws can now be used to sanction professional
historians whose research leads them to findings that these laws
classify as unacceptable. And the anti-Nazi slope has proven more
slippery than that. Denial laws have been supplemented by new laws
that are even more prone to sanctioning reasonable people.

Targeting the Political Mainstream

Especially since the 1970s, western Europeans have been passing bans
on speech that "incites hatred" based on race, religion, ethnicity,
national origin, and other criteria. These were adopted or beefed up
in the 1980s in the face of rising violence against minorities and
rising far-right parties like the French National Front. Such laws
are now in place in Germany, Austria, Belgium, Sweden, Norway,
France, Britain, and elsewhere. France’s 1972 Holocaust denial law
was expanded by the 1990 Gayssot law, which extended sanctions to
denial of other crimes against humanity and points of view deemed
racist. France’s Conseil Superieur de l’Audiovisuel monitors
broadcasters for any statements that might incite racial hatred.
Earlier British legislation against incitement of racial hatred was
expanded in 1986 and was extended again in February 2006, the latter
time to criminalize intentionally "stirring up hatred against persons
on religious grounds." This is spreading to the European Union level,
where a stream of rules now prohibits the broadcast, including
online, of any program or ad that incites "hatred based on sex,
racial or ethnic origin, religion or belief, disability, age or
sexual orientation" or–crucially–is "offensive to religious or
political beliefs."

The highest-profile prosecutions under these laws have been of people
and organizations very vulnerable to the charge of racism. Incitement
charges have repeatedly been brought against the French National
Front’s Jean-Marie Le Pen, who regularly trades in slurs against
blacks and Arabs. Similar charges were leveled against the Vlaams
Blok, a Flemish nationalist party advocating the breakup of the
bilingual Belgian state, which sometimes luridly stereotyped
immigrants from the developing world as predisposed to criminality
and welfare dependency. In November 2004, Belgium’s highest court
found the party guilty of racism, allowing the government to deny it
state funding and access to television, in effect forcing the Vlaams
Blok to dissolve and re-form under a new name. At the time, the Blok
was jockeying for first place in polls among Belgium’s Flemish
voters.

But the anti-incitement laws now regularly target people who are well
within the political mainstream. This is political correctness backed
up with prison time. Britain’s then-home secretary Jack Straw
remarked in 1999 on criminal activity by people, many of whom posed
as gypsies or "travelers"–hardly a slur on all gypsies even without
that qualifier. But a travelers’ group filed a complaint of inciting
racial hatred, prompting a formal investigation and extensive media
coverage asking whether Straw was racist. In 2002, the prominent
French novelist Michel Houellebecq was charged with inciting racial
hatred in a novel and interview in which he referred to Islam as "the
stupidest religion." Veteran Italian journalist Oriana Fallaci was
motivated by 9/11 to criticize Islam as violent and subversive of
traditional European mores. As a result she faced a French attempt in
2002 to ban her book as racist, and she is scheduled to stand trial
in Italy in June for statements "offensive to Islam." One of her
accusers, in turn, faces charges for calling the Catholic Church a
"criminal organization."

In May 2005, Le Monde, France’s premier center-left newspaper, was
found guilty of defaming Jews in a 2002 editorial that criticized
Israeli policies while referring to Israel as "a nation of refugees."
The appeals court found that such juxtapositions made Israelis
synonymous with Jews, so criticism of the former constituted
incitement of hatred against the latter. After it published a series
of controversial cartoons of Muhammad, the Danish newspaper
Jyllands-Posten was formally investigated to determine whether the
cartoons constituted prohibited racist or blasphemous speech.

This swirl of speech-law charges, lawsuits, and investigations is now
sustained by an "antiracism" industry. Dozens of antiracism groups
and self-appointed representatives of religious and other
communities, like France’s Movement Against Racism and for Friendship
Between Peoples (MRAP) and the Muslim Union of Italy, readily file
complaints and suits and sometimes are the direct beneficiaries when
fines are imposed. Their complaints provoke investigations by an
alphabet soup of government agencies, like Belgium’s Center for Equal
Opportunities and Opposition to Racism and Britain’s Commission for
Racial Equality. These, in turn, feed into the court system. If
America had practices like these, the debate over, say, the Dubai
ports deal would almost certainly have sparked a shower of civil
suits and criminal investigations against elected officials and
columnists charged with "anti-Arab . . . anti-Muslim" bigotry (to
quote the Council on American-Islamic Relations).

Not all cases, of course, result in punishment. Le Pen has been fined
hundreds of thousands of dollars, neo-Nazi groups banned, Holocaust
deniers and anti-Semites jailed in several countries, and the Vlaams
Blok de facto dissolved. Le Monde was found guilty, but sanctioned
with only a symbolic fine; Bernard Lewis was hit with somewhat larger
costs. The investigation of Straw was dropped, Houellebecq was
acquitted, and the Danish prosecutors decided not to press charges
against the Jyllands-Posten. But an increasing number of European
intellectuals, politicians, journalists, and even scholars have had
uncomfortable and expensive brushes with speech laws. In many cases,
their reputation is tarnished; afterward, their Wikipedia entry, so
to speak, is never complete without mention of the official
investigation for bigotry.

So the real danger posed by Europe’s speech laws is not so much
guilty verdicts as an insidious chilling of political debate, as
people censor themselves in order to avoid legal charges and the
stigma and expense they bring. And the most serious chill is not of
fringe racists but of mainstream moderates and conservatives.

Bigoted Speech or Constructive Criticism?

First of all, it turns out that some denials and incitements are more
equal than others in Europe. For all the trials on charges of
Holocaust denial, it is not clear that anyone has been charged with
denial or minimization of crimes committed by Communist regimes. And
the laws banning incitement of hatred on grounds of race, religion,
ethnicity, or national origin do not ban incitement based on
political orientation or economic status. Moreover, these laws
protect speech that incites hatred against Americans and some others.
And while there have been some convictions of Islamist radicals for
inciting hatred against Jews and others, Europeans have been shy to
move against the incitement pervasive in Islamist circles.

In other words, Europe’s speech laws are written and applied in ways
that leave activists on the political left free to whitewash crimes
of leftist regimes, incite hatred against their domestic bogeymen of
the well-to-do, and luridly stereotype their international bogeymen,
often with history-distorting falsehoods such as fictitious claims of
genocide said to be committed by the United States and Israel. It may
be no coincidence that Socialist and extreme-left parties have played
central roles in the design of speech laws. The crafter of France’s
1990 Gayssot law, for example, was Jean-Claude Gayssot, a longtime
Communist Party officeholder. All this matters. It sends an important
signal to the broader culture when Hitler is the symbol of evil while
Stalin and Mao are given a pass, and when, in effect, Pat Buchanan’s
ideas risk indictment while Michael Moore’s are protected.

But the more serious bias comes out when anti-incitement laws are
allowed to degenerate into the sanctioning of speech that causes
"offense." It is not clear why avoiding offense should be a top
priority to begin with. But when it is, the most important
consequence is likely to be the chilling not of racist speech, but of
moderate and conservative thinking about major social problems. After
all, two views tend to cause offense in this day and age. The first
is the speech of bigots who denigrate members of other groups,
calling them, say, inherently delinquent. The second is speech by
modern moderates and conservatives who believe that problems like
poverty, delinquency, and poor health can often–not always, but
often–be traced to bad choices and mores and dysfunctional
subcultures. Sometimes problems are disproportionately concentrated
within groups, regardless of class, race, ethnicity, or religion.
Identifying these causes assumes they can be corrected, so
identifying them is a prerequisite to improvement. This is the
furthest thing from racism. It is the nonbigotry of high
expectations.

But in our hypersensitive age, this sort of speech is prone to being
construed as prejudice–much more prone than the left’s traditional
language, which attributes people’s problems to discrimination and
other forces beyond their control. Moderate and conservative speech
is even more likely to be tagged as bigoted when that tag is wielded
cynically by political opponents. In the politically tilted world of
Europe’s media, intellectuals, and NGOs, this happens all the time.
We know this is often cynical, because European speech-law advocates
like Jean-Claude Gayssot are perfectly capable of criticizing Israel
while insisting this doesn’t mean they’re anti-Semitic.

Laws against any speech that causes "offense" are biased because they
have the insidious effect of conflating bigoted speech and
constructive criticism, two kinds of speech that should be sharply
distinguished from each other. The result is the stigmatization of
certain kinds of thinking about social problems and public policy
that American conservatives, moderates, and even many liberals
recognize as a legitimate part of serious debate. These speech laws
will not ultimately silence extremists–whose careers will not end if
they are called bigots and who often seek out controversy–but they
can silence reasonable people who do not want that label and do not
want a scandal.

Between Europe’s speech laws, hypersensitivity, and cynical
demagoguery, constructive criticism can become virtually impossible,
and self-censorship the norm. The effects are plain to see. European
politicians, media outlets, and university discussions are routinely
uncomfortable airing information–say, about rates of crime–that
reflects unfavorably on the members of groups with citizens of
African or Middle Eastern descent, for fear that it will fuel
negative stereotypes of these groups and open the broadcaster to
charges of inciting hatred. Last fall, many French politicians and
commentators carefully avoided characterizing the identities of the
"youths" rioting in dozens of French cities and towns, and did not
aggressively pursue that issue when peace was restored. This leaves
it unclear even now who did what and why in the rioting–knowledge
that is a prerequisite for a serious policy response to what
happened.

The Future of Illiberal Speech in Europe

Consider the case of Alain Finkielkraut, a distinguished French
philosopher. Last November, Israel’s Ha’aretz newspaper interviewed
him about the French riots. In blunt language, he said that poverty
and discrimination could not explain the rioters’ behavior, since
most poor communities in France did not torch cars. He believed
public debate should acknowledge head-on that the rioters were
heavily of Arab and African descent and bore aggressively
anti-Western attitudes. He specifically insisted that neither all
"blacks and Arabs" nor Islam as a religion were implicated in that
statement. And he proposed that it was imperative to signal the
rioters that calls for opportunity within a society had to be matched
with a sense of responsibility to that society.

Given that most French commentators flinched from serious engagement
with the rioters’ thuggish assault on France’s public spaces,
Finkielkraut’s was a point of view that badly needed to be expressed.
But after Le Monde offered the public a biased sample of his words,
MRAP moved immediately to file legal charges against him, withdrawing
the threat only when Finkielkraut appeared to apologize. While
Finkielkraut has not renounced his original words, he and others like
him have since been less outspoken. Public debate on an urgent matter
was deprived of a viewpoint that identified where the real hatred
resided, sought ways to retrieve segments of French youth from its
grip, and exhorted France to expect more of its own people.

The same deprivation can be seen in the initial handling of the
recent kidnapping, twenty-four-day torture, and then murder of Ilan
Halimi, a young French Jew. For days after the dying Halimi was
found, authorities tried to avoid discussing the possibility that the
kidnappers were Muslim and that anti-Semitism partly motivated them,
despite powerful signs pointing in that direction. Officials wanted
to combat anti-Semitism but not to paint Muslims in France as
anti-Semitic. Many German authorities are similarly unsure what to do
when young Germans of Turkish descent loudly cheer Valley of the
Wolves, the new anti-American and anti-Semitic Turkish hit film.
Criticism might offend Turks, but silence risks offending Jews. The
compromise is prevarication. The side effect is disrespect for
morally flabby authority figures. And the result is impoverishment of
public debate.

The good news is that Europeans are questioning their illiberal
speech laws as never before. For several years, scholars and
intellectuals in France especially have been circulating petitions
and counterpetitions regarding the wisdom particularly of the laws
creating official accounts of history. Such skepticism has received a
huge boost from the events surrounding the Danish cartoons. After
their publication, a concerted campaign to drum up outrage in the
Muslim world triggered demonstrations and riots in numerous places.
With that violence as a backdrop, many Muslims inside and outside
Europe have been insisting that European governments ban the
cartoons. As models for this, they cite not only censorship rules in
Middle Eastern countries, but also Europe’s own speech laws. Many are
bewildered that speech offensive to Jews is banned but not speech
offensive to Muslims.

In response, many Europeans have found it difficult to justify these
inconsistencies. Several European governments take the expected and
untenable middle road: they refuse to ban the cartoons but plead with
their media not to publish them either. Other Europeans, though, seem
to be using their discomfort over the idea of banning the cartoons to
ask whether they shouldn’t get out of the business of banning
political speech altogether.

If they try, they will not have the backing of international law. The
International Covenant on Civil and Political Rights–the code the
U.N. Human Rights Committee is charged with enforcing–insists on the
banning of "advocacy of national, racial or religious hatred." They
also won’t command the support of the world’s best-known human rights
organization. Amnesty International accepts speech laws as
legitimate, so it generally excludes from its list of "prisoners of
conscience"–that is, people "imprisoned solely for the peaceful
expression of their beliefs"–anyone imprisoned for "advocacy of
hatred."

But reform-minded Europeans would have the example of U.S. practice,
which tolerates even loathsome speech. They would also have the
example of a rival human rights organization. Taking a principled
stand in the face of a great deal of international practice, Human
Rights Watch insists that governments should ban speech only when it
"constitutes imminent incitement" to violence and other unlawful acts
and urges reform of these laws, including repeal of Holocaust denial
laws. Europeans of all political stripes should want to seize this
opportunity to reverse the most dangerously illiberal trend in the
world’s advanced democracies. That would cease to make Europe a role
model for censorship and restore it as a model of core democratic
rights instead, expanding and not contracting its moral authority in
the world.

Gerard Alexander is a visiting scholar at AEI.

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