Balkinization: Hate Speech Prosecutions: Europe and the U.S.

Hate Speech Prosecutions: Europe and the U.S.

Ken Kersch

The news that John Terry, the (white) captain of the English national soccer team (and of his club team, Chelsea), will be criminally prosecuted under Britain’s Crime and Disorder Act of 1998 for racist comments Terry allegedly made on the pitch to Queens Park Rangers defender Anton Ferdinand (who is black) spotlights the very different ways that European and American law strike the balance between – as the subtitle of an excellent new book on the subject puts it -- “preserv[ing] freedom and combat[ing] racism.”

The book is Erik Bleich’s The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford, 2011). Bleich is not a law professor, but a political scientist with an expertise in the racial and ethnic politics of western Europe. In late November, I was part of an interdisciplinary panel of sociologists, anthropologists, criminologists, and political scientists at the Annual Meeting of the Social Science History Association who discussed the book with Bleich.

The topic of hate speech regulation was big when I was in law school, but most of that discussion was rooted in political/legal theory: Catharine MacKinnon, Andrea Dworkin, Feminist Theory, Critical Race Theory. Bleich’s approach, while outlining the basics of the theory, is different. For one thing, since he is not a constitutional law professor, he doesn’t feel a professional obligation to advance a theory of the single “best” way to approach the issue that gets the balance between liberty and dignity/equality just right, in the process refuting the proposed “best” theories advanced by others. Bleich starts by assuming that the core tensions between the values involved in the question are real -- and theoretically unresolvable.

Of course, practically, as a matter of public policy, those tensions must be resolved by governments, and are. The book is largely empirical. It sets out to describe the different ways that hate speech is regulated in several key European countries (England, France, Germany), as well as transnationally. It describes the different forms that such regulation takes there, involving not simply prosecution for racist remarks – as with the current prosecution of the footballer Terry in England, and the famous serial prosecutions of film icon, and animal rights advocate, Bridget Bardot in France (for anti-Muslim remarks) – but also the banning of racist political parties, and restrictions on the freedom of the press (the Danish cartoons), and intellectual freedom (historian David Irving’s Holocaust denial), and other topics. Bleich places a heavy emphasis on situating each form of regulation in the institutional and political histories and cultures of the various countries, suggesting, in the process, that any understanding of the “best” approach to the issue must effectively take into account such developmental pedigrees and lineages – it is not, that is, something that can be resolved by abstract theory alone (although the theory, as refracted through the medium of party and social movement politics, is certainly part of the process). Comparing “the law in action” from “the law in books,” Bleich argues, somewhat provocatively, that that the U.S. is less exceptional in its regulation of hate speech than is commonly supposed (think of all the restrictions on speech in the workplace here, for example: see David Bernstein, You Can’t Say That! (Cato Institute, 2003)). Bleich's empirical overview raises many questions that might not be first and foremost when one approaches the subject as a matter of legal theory.

The diverse panel offered varied observations, and raised a number of questions. I argued that, if one approached the issue empirically, the test of these laws had to ultimately be not how many prosecutions there were under the laws, but rather one of how well the regulatory system helped manage the society’s pluralism – something that would be difficult to measure (Bleich doesn’t attempt that). I wondered whether such laws would have any effect in most serious cases (Weimar Germany; Rwanda). I also raised questions about some institutional differences between the U.S. and European democracies that might justify different rules – chiefly the relative autonomy of prosecutor’s offices there (anchored as they are in the highly professionalized civil service), and the relatively political nature of the office here (where prosecutors are political appointees, if not elected). Others testified to the symbolic importance of such laws and prosecutions (or their absence), provided evidence of the depth of the problem, and its consequences, here and abroad, and raised questions about the limits of Bleich’s case selection (studies of hate speech in Africa and post-communist Eastern Europe were suggested).

All in all, it was a stimulating discussion. The book is relatively short, and clearly written, which would make it useful for classroom teaching. It would be a nice addition to courses addressing the issue that currently focus solely on the U.S. case, or to courses that approach the question as a purely a matter of political/legal theory. Not the least of the book’s virtues is to suggest – as one of the leading Republican Party candidates for President is warning that Muslims are moving to establish Shariah Law in the United States -- that there is actually a lot more to know and learn about (unfortunately) timely topic.

Posted 10:11 AM by Ken Kersch [link]