A Note from Our Editor: "Hate Speech"

Readers of the Global Journal are well-acquainted with the Editor’s appreciation of foreign law (see, for example, our Introduction to Vol. 8, No. 1). We believe that every legal system must be judged by the absolute standards of God’s revealed word, the Holy Scriptures, and, if this is done, the result can be that principles in another legal system or in international law may turn out to be more in accord with the divine will than what can be found in American law. However, the reverse can also be the case, and a sad illustration thereof is the position of European legal systems on the matter of hate speech and “negationism” (denying historical facts such as genocide).

In American law, the Federal Constitution’s First Amendment is the determining factor: freedom of speech, expression, and assembly is a primary value. True, these are not unqualified. “Falsely shouting fire in a theatre and causing panic” is not protected and one will go to jail if he or she irresponsibly does such a thing (O.W. Holmes, Jr., in Schenck v. United States, 249 U.S. 47 [1919]). If there is a serious danger of riot and affray, public speech may be restrained. But where such limiting conditions do not exist, and when the defamation of another is not in question, one is legally allowed to express one’s views—even when they are false, obnoxious, or hurtful to others. Thus, in a famous case ultimately decided by the U. S. Supreme Court, Nazis were allowed with impunity to parade through a predominately Jewish suburb of Chicago; though obnoxious and hurtful to the feelings of many, the philosophy of the marchers created no danger of insurrection (National Socialist Party of America v. Village of Skokie, 432 U.S. 43 [1977]). And in a very recent case, an anti-gay congregation suffered no legal condemnation for expressing their opposition to homosexuality at the burial of soldiers who had died defending their country (Snyder v. Phelps et al., No. 09-751, decided 2 Mar. 2011). On balance, freedom of speech was more important than hurt feelings.

But in Europe, the perspective is very different. I recently attended a conference sponsored by the Criminal Law Institute of the Paris Bar on “Pénalisation de la Négation des Génocides.” Why genocide? Because the French Parliament passed a law on 23 January criminalising the denial of the Turkish genocide of Armenians in 1915 to 1923. (“How’s that?,” you say. “Why are the French concerned with this item of ancient history?” Answer: a considerable number of Armenian refugees of the Turkish persecution settled in France—including the family of the archetypal French singer Charles Aznavour—and the French president, Nicolas Sarkozy, is dead against Turkey’s joining the European Union. On the Turkish genocide, see our introduction to Vol. 3, No. 3 of the Global Journal.)

The French criminal law (like the legislation in most European countries) goes far beyond the Turkish-Armenian problem. The so-called Law Gayssot (No. 90-615 of 13 July 1990) criminalises any “contesting” of the crimes against humanity condemned by the Nuremberg War Crimes Tribunal at the end of World War II. Denial of the Nazi holocaust is thus a crime, as is questioning the extent of it. In Germany, it is still illegal to re-publish Hitler’s Mein Kampf.[1] The justifications for such denials of free speech are various. It is argued that to deny acts of inhumanity is in effect to condone them, for only through collective memory are those acts able to be brought before subsequent generations. Not to do so is to defame the dead and to disregard the feelings of the survivors. And we are told that only through criminal penalties will the youth of today see the evils of the past and not repeat them.

The problem with such argumentation is that it confuses, on the one hand, the need to set forth and to teach the truth about past inhumanities of man to man, and, on the other, the desirability of criminalizing critical speech about such acts. To be sure, holocausts must be factually recorded and taught to subsequent generations; but it does not follow that sending to jail those misguided folk who deny them is a positive social act.

One of the most distinguished lawyers and statesmen in France, Robert Badinter (who was more responsible than anyone else in abolishing capital punishment in France) has come out against the Armenian genocide law (Huffington Post/Le Monde, i5 and 25 Jan. 2012). His argument is that “Parliament is not a tribunal” and that such criminalization of free speech can well have a “boomerang” effect, since any politically incorrect speech could then become the object of similar legislation.

True, Europe in modern times has suffered far more than America from totalitarian evils. This may make the European legal denial of free speech more understandable, but it does not in any way justify it on principle. The answer to obnoxious viewpoints must not be that of a paternalistic society endeavouring to wall off its citizenry from falsehood through criminal penalties. To do so smacks of the very totalitarianism one desperately wants to eliminate. The answer to stupidity and falsehood is intelligence and truth: educating the populace is the solution, not repressing and jailing those who present obnoxious views. Those who maintain the flat earth theory need to be shown up as idiots in school and in the press, but they do not deserve to be jailed. The distance between stupidity and political incorrectness is hardly a bright line, and society needs to protect the right to be wrong and insensitive; otherwise, truth can be imprisoned as easily as falsehood.

Europeans often regard America as an adolescent, immature nation. But, in fact, it is the European approach to negationism that it immature: treating the populace as children, not letting anyone offend them. American law regards its subjects as potentially mature adults who need to be able to tolerate offensive speech and assembly—and insist on countering them with better reasons, better facts, and more adult corporate activity.

In any event, life looks up! On 28 February 2012, the Conseil Constitutionnel, to which the French Parliamentary act criminalizing Armenian genocide was referred for an evaluation as to its constitutional legitimacy, ruled that the proposed act violated the fundamental principles of “freedom of expression and communication.” The Conseil, sadly, did not object to all legislation of hate speech but at least made clear that Parliament was not the appropriate forum for making such determinations. The French may thus be moving toward a proper recognition that historical facts need to be decided by historians and the results presented by educators and the fourth estate—not established by legislatures.

[Here are a few references to English discussions of the topic: Iganski, Paul (ed.), The Hate Debate: Should Hate Be Punished As a Crime? (London: Profile Books, 2002); Lipstadt, Deborah, Denying the Holocaust: The Growing Assault on Truth and Memory (New York: Free Press, 1993); Marshall, Paul and Shea, Nina, Silenced: How Apostasy & Blasphemy Codes Are Choking Freedom Worldwide (New York: Oxford University Press, 2011); Matsuda, Mari J. et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colorado, Westview Press, 1993).]

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It is most unusual to devote an entire issue of the Global Journal to a single contribution. But this is the case in our present issue, owing to the overarching importance of the topic: a defense of biblical inerrancy by Oregon lawyer John J. Tollefsen, LL.M., Th.M.

Mr. Tollefsen, though not a professional theologian, has benefited from apologetic training at the Editor's International Academy of Apologetics, Evangelism and Human Rights, obtaining the Academy's Diploma in Christian Apologetics and Fellow's status. His extensive experience in litigation places him in a special position to argue his case over against those liberal evangelicals, especially in Great Britain and Canada, who are uncomfortable with the classic doctrine of a Scriptural revelation that does not err.

John Warwick Montgomery

[1] The Bavarian government, which holds the copyright, has announced that it will publish an annotated edition in 2015—just before Mein Kampf passes into the public domain (70 years after Hitler’s death). One suspects that the government’s motive is economic, not a sudden, laudable concern with freedom of speech.


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