an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A coda to my earlier post on the regulation of hate speech in Europe and the U.S…. The following day, the New York Times had another interesting article on the subject. The paper reported a major diplomatic rupture between France and Turkey following the approval by the lower house of the French parliament of a bill that would make it a crime for anyone to deny that the Turks committed genocide against the Armenians in the early twentieth century. Especially notable was the fact that Turkey has its own law that is the mirror image of the proposed French legislation – a law, that is, that makes it a crime in Turkey for anyone to affirm that the Turks committed genocide against the Armenians.
Let’s look at this from the perspective of the (purported) aspirations of these two nations to “unite” under a common polity – the European Union (which was created in significant part to prevent the Nazi genocide (post hoc, of course…)). If, for a moment, we treat these nations as true compatriots, the law of the European umbrella polity now makes it a criminal offense to either deny or affirm the Armenian genocide.
Is this what they call a “teachable moment”?
I would ask some analytic and developmental questions.
Rather than being crudely either “for” or “against” laws criminalizing hate speech, might it be useful for social scientists, legal scholars, and our students, to start making some more refined analytic distinctions between different types of hate crimes regulations, and the different contexts occasioning them? The Turkey-France contretemps is a case of an effort to regulate a particular type of speech – the articulation of a historical interpretation of events. Is this on all-fours with the criminalization of European Holocaust denial? Is David Irving’s denial of the Nazi genocide a denial of (all but) indisputable facts, whereas the Turkish denial is a matter of the interpretation/characterization of the facts? When is a fact so “factual” as to be indisputable? At a deeper level, is it possible to form a common polity out of nations with utterly divergent historical memories? What happens to law when it is not underwritten by memory? Obviously, both parties here believe that a shared historical memory is enormously important to a successful, sustainable polity (or else they wouldn’t have tried to impose it under penalty of law). Once the EU unites (if the fantastical economic utopianism underwriting the monetary union doesn’t destroy it first….), will the seat of the Ottoman Empire and Paris join in a shared historical memory in all areas where it matters? What about the world? How much is the success of any human rights regime dependent upon these convergences? What are the consequences of seeking to legally coerce convergence?
The criminalization of historical interpretation is only one form of hate speech regulation. There is also regulation applying to remarks (casual/off-the-cuff, or with the specific intention to intimidate --with diverse likelihoods of success), to the systematic propagation of ideologies (or religions), to the legal recognition (or permitting) of political parties (does it matter whether the political prospects for such parties are high or hopeless?), to the legality of dismissals from private or public employment, and so forth. These may all be about regulating “hate,” but they are not the same thing.
And what about context? How much would it matter if we are in an immediate post-genocide situation (e.g. places in Africa), or well down the road to a new day (Nazi western Europe)? Should these laws be sunset-able (as Justice O’Connor famously suggested about racial preferences in the U.S.) – implying that they are about managing pluralism in a polity in which the underlying conditions are changing and developing – or are they there to enforce and make a symbolic statement of timeless principles? What about purportedly pre-genocide situations? Or are hate speech regulations aimed more at less dire matters of “nudging” us toward social and political equality under more functional conditions? How bad do things have to be to justify them? Or, from a different perspective, how good? Might these laws, in some cases, serve to undermine the basis of that functionality?
To return to case of prosecution for articulating the wrong memory, of course this is not solely a European matter. A large part of the constitutional politics roiling the contemporary United States involves aggressive efforts to sell divergent memories of the nation’s past: about the Founding, Reconstruction, the New Deal, the 1960s, the 1980s, etc. When are clashes of historical and constitutional memory the necessary -- and perhaps even desirable -- features of a vital constitutional polity, and when are they toxic? If toxic, when is the time to step in with the criminal law… if ever?