By CHERYL L. DAYTEC
The truth will set
you free.
-Jesus Christ
The bedrock of viewpoint absolutism is the principle of
tolerance Strasbourg says is
necessary, like pluralism and
broadmindedness, to democracy.[i] Not many
disagree that tolerance is indispensable
in advancing individual and communal interests.
An
open market of ideas liberates individuals. Armed with knowledge, they are able
to resist manipulation. In an atmosphere of intolerance, thoughts are
manipulated by those who wield the power of speech. Individuals without thought are without freedom. People with manipulated thoughts are vulnerable
to eventually view their situation with
their oppressor’s eyes and co-author
their oppression through silence and submission, a condition Freire calls
internalized oppression.[v] When they lose their personal
consciousness, they unwittingly install
tyranny. In the ultimate analysis, these people live in a society afraid of its
own truths, chained to falsehood, without freedom. Drawing from the naturalist theory
that human rights are a consequence of
being human, intolerance of speech may
reduce human dignity. As John Stuart Mill said,
The
peculiar evil of silencing the expression of an opinion is, that it is robbing
the human race; posterity as well as the existing generation; those who dissent
from the opinion, still more than those who hold it. If the opinion is
right, they are deprived of the opportunity of exchanging error for
truth: if wrong, they lose, what is almost as great a benefit, the
clearer perception and livelier impression of truth, produced by its collision
with error.[vi]
But
the paradox of tolerance was well-stated by
Strasbourg: "(A)bsolute tolerance may lead to the tolerance of the ideas promoting intolerance, and the latter
could then destroy the tolerance."[vii] American jurisprudence recognizes this. In
one case, the US Supreme Court said:
"There
are limits to the exercise of these liberties [of speech and of the press]. The
danger in these times from the coercive activities of those who in the delusion
of racial or religious conceit would incite violence and breaches of the peace
in order to deprive others of their equal right to the exercise of their
liberties, is emphasized by events familiar to all. These and other
transgressions of those limits the States appropriately may punish."[viii]
Tolerance of intolerance is problematic because like a candle it can self-destruct, ultimately negating tolerance. Unlimited tolerance and absence of tolerance, upon which hate speeches draw nourishment, are one and the same in consequences. They erect formidable structures of prejudice in the cultural as well as legal sphere against individuals or groups of people targeted on the basis of race, sex, nationality or religion. They become the unequal “others” deprived of their participation in the public discourse. And “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[ix] Hate expressions alienate targets from their civil rights and political participation. They lead to intolerance, hindering victims from exercising their freedoms.
Viewpoint absolutists, like Heinze, propound that speech prohibitions achieve nothing and
perhaps America’s experience validates
this. But the United States is supposedly the
world’s oldest and strongest democracy. It presumably has
tested bureaucratic, judicial and
legislative apparatuses that address
social issues, like inequality and prejudice,
which hate speeches foment or exacerbate. In a strong democracy, censorship may even create a more vibrant democracy.
While it incarcerates people, it sparks
the flame for assertion. It is human nature to cling to what one is about to
lose. For instance, humans never claimed a right to oxygen until climate change
happened. But this operates in a legal space where conditions are equal for
all.
Not all democracies are strong and old. Europe has
democracies newly-emergent from totalitarianism, struggling to equalize
local conditions. Other continents have
fledgling democracies. If
socio-political structures that address issues of inequality are still fragile,
tolerance of intolerance may not augur well with democracy and human rights.
Where pronounced
inequality is the norm of the day, a line must be drawn between where
tolerable offensive speech
ends and where legally intolerable hate speech
begins if democracy and human rights must be secured. Hate speech must be
proscribed. As the Camden Principles
suggest, the borders of tolerance must be
defined to achieve equality, that is
comparable conditions of existence for all. However, proscription should
take the form of subsequent punishment
and not prior censorship. Prior censorship curtails human rights because gags
prohibits human beings from utilizing faculties nature endowed them with.
The problem however is the definition of hate speech. What may be classified as hate speech in
Europe may be protected speech in America. One individual’s vulgarity is
another’s lyric[x]
as one society’s freedom may be
another’s destruction.
What constitutes hate speech is dependent on society’s political and social context. At the minimum, every society should accept
that freedom of expression is the
freedom to offend, shock and disturb[xi] and no
one should claim a right against insult. A comprehensive restriction on any
offending, shocking or disturbing speech militates against democracy and
human rights. It consigns freedom of expression to people’s sensitivities and adopts emotions
which vary from individual to individual as the
yardstick for determining whether an expression is hate speech or not. It
imposes compulsory courtesy which violates individual autonomy.
Compulsory courtesy then metamorphoses into subjugation of thought breeding
tyranny, democracy’s antithesis. Needless to reiterate, tyranny does not
respect human rights.
The European Convention on Human Rights allows
restrictions on speech although textually, it contains no hate speech
prohibition.[xii]
Strasbourg jurisprudence gives States
prerogative to prohibit hate speeches
which, according to the Committee of Ministers of the Council of Europe,
include “all expressions spreading,
inciting, promoting or justifying racial hatred, xenophobia, anti-Semitism or
other forms of hatred based on intolerance, including intolerance expressed by
aggressive nationalism and ethnocentrism, discrimination and hostility against
minorities, migrants and people of immigrant origin.”[xiii] But since
socio-political conditions vary from society to society, Strasbourg granted States a ’margin of appreciation’[xiv] to determine those restrictions
necessary for democracy and the
protections of others’ freedoms. Apparently, many European states adopted legislation to outlaw expressions
classified as hate speech by Strasbourg. Each of them has their own standards, which
are presumably abstracted from their historical experiences and socio-political
needs.
But what should be common is that to qualify as hate speech, expressions should be so virulently
denigrating that they expose targets to public prejudice, contempt or
intolerance. Even debunking religious beliefs may be proscribed
as hate speech when its effect is such that it inhibits believers from exercising their faith,[xv] but members
of a religious community must tolerate the rejection by others of their
religious beliefs.[xvi]
Some Strasbourg free speech decisions may not withstand
American judicial scrutiny which has a restrictive case law on free speech
limitations. In some Strasbourg decisions, prior censorship was upheld[xvii] which
is repugnant to democracy and individual autonomy as it kills ideas before they
are even expressed. Mere tendency to
foster intolerance is already enough basis to limit speech for politicians[xviii] which
is taking hate speech prohibition to far corners.
This passionate position against hate speech is perhaps
explained by the fact that ECHR which
is at the core of Strasbourg’s judicial power was Europe’s moral response to
Nazism, an ideology propagating racial hatred and therefore an assault on human
dignity, as much as Germany’s Basic Law
was the constitutional means to “a democracy capable of defending itself”[xix]
drawing its lesson from the Weimar
Constitution which fostered a tenacious
democracy and made Nazism’s
rise auspicious. Thus in Garaudy v. France[xx]
Strasbourg, finding that Garaudy’s rights were not violated when punished
for publishing a Holocaust denial book held that the book’s true end was “to
rehabilitate the National-Socialist regime and, as a consequence, accuse
the victims themselves of falsifying history.” It said, “Denying crimes against humanity is therefore
one of the most serious forms of racial defamation of Jews and of
incitement to hatred of them.” And yet, Strasbourg has demonstrated tolerance to what would amount to hate
speech. In Jersild v. Denmark,[xxi] it ruled that punishing a journalist who
assisted in disseminating hate speech by a third party would curtail press
freedom.
Not all individual freedoms are boundless and unconditional. Some of them,
like freedom of speech, should be
restricted as necessary to secure freedoms for others and communal
objectives. Absolute tolerance of speech may water down the essence of freedom.
As held by the Human Rights Committee in Faurisson
v France,[xxii]
restrictions on tolerance may be
necessary “to live from fear of an
atmosphere of anti-Semitism.”
To
summarize, viewpoint absolutism breeds tyranny and negates individual autonomy.
States must create an environment where democracy flourishes, that is people
can participate in the public debate, and which promotes human rights, i.e. individuals
are able to realize and exercise their fundamental rights. While they should
tolerate offensive speech, States must proscribe
virulent speech that isolates individuals from the rest of society and curtails
their social participation. However, the proscription should not abort
ideas before they are expressed.
[ii]Bowman v. The United
Kingdom
[iii]Incal v. Turkey, judgment of 9 June 1998
[iv]Jersild v. Denmark, ibid., para.31, Gündüz v. Turkey,
[v]Paulo
Freire. Pedagogy of the Oppressed.
Trans. by Myra New York
[vi] John Stuart Mill, On Liberty Toronto : Dover
[vii] Kuhnen v. Federal Republic
of Germany
[viii] Beauharnais v, Illinois
[ix] Introductory Statement, The Camden
[x] Cohen v California
[xi] Müslüm
Gündüz v. Turkey ,
Application No. 35071/97 (4 December 2003); Karatas v Turkey
(GC), 23168/94, ECHR 1999-IV; Vogt v. Germany
[xii]On the other hand, the International Covenant on Civil and Political
Rights in Article 20 (par. 2) expressly prohibits the advocacy of national,
racial or religious hatred. The International Convention on the Elimination of
All Forms of Racial Discrimination expressly prohibits propaganda
promoting racial discrimination.
[xiii] Scope, Recommendation No. R (97) of the Committee of Ministers to
Member States on Hate Speech (30 October 1997)
[xiv]Although this is not written in the European Convention on Human Rights, Strasbourg
developed this in its jurisprudence to address the diversity of conceptions of
issues such as morality and as a corollary of the principle of subsidiarity
which states that supranational bodies are not substitutes for domestic
mechanisms of human rights enforcement.
In Handyside v. UK, Strasbourg, rationalizing the grant to States of a
margin of appreciation said, (B)y reason of their direct and continuous
contact with the vital forces of their countries, State authorities are in
principle in a better position than the international judge to give an opinion
on the exact content of these requirements as well as on the ‘necessity’ of a
‘restriction’ or ‘penalty’ intended to meet them.”
[xv] Otto-Preminger-Institut v. Austria, Application
No. 13470/87 (20 September 1997)
[xvi] Aydin
Tatlav v Turkey
(2 May 2002); Otto Preminger v. Austria
[xvii] For
example, in Observer, et alis v. UK Strasbourg
[xviii] Erbakan v. Turkey
[xix] Vogt v Germany
[xx]Application No. 65831/01 (24 June 2003)
[xxi] Application No. 15890/89
(23 September 1994)
[xxii] UN Doc. CCPR/C/58/D/550/1993
(1996)
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