The U.S. is alone among western democracies in protecting “hate speech.” Chalk it up to a healthy fear of government censorship.

March 16, 2011

OPINION By PETER SCHEER –

An inebriated John Galliano, sitting in a Paris bar, unleashes an anti-semitic rant (“I love Hitler”) that is captured on a cellphone camera and posted on the internet. Within days the Dior designer is not only fired from his job, but is given a trial date to face criminal charges for his offensive remarks.

In the same week, the U.S. Supreme Court extends First Amendment protection to the homophobic proclamations of a fringe religious group whose founder and members, picketing near a funeral for an American soldier killed in Iraq, hold signs stating, among other things, “Thank God for Dead Soldiers,” “God hates fags” and “You’re Going to Hell.” The Court, in Snyder v. Phelps, bars a suit against the religious group for damages because the demonstrators’ message, although causing “emotional distress” to the dead soldier’s family, dealt with “matters of public concern.”

The contrast between these cases reflects fundamentally different views about the role of free speech in a democracy. France, hardly an intolerant or autocratic country, imposes criminal fines for racial epithets, Holocaust-denial, anti-immigrant advocacy and other forms of “hate speech.” And the French are not alone. To varying degrees, Germany, the Netherlands, New Zealand, South Africa and Canada–liberal democracies, all–enforce similar laws banning hate speech.

The United States is an outlier when it comes to freedom of expression. Although we share other countries’ repugnance for hate speech, particularly the race- and religion-baiting variety, the First Amendment reflects a uniquely strong aversion to government censorship of any kind. As interpreted in Supreme Court decisions going back nearly a century, the First Amendment forbids government suppression of ideas, no matter how vile, deranged or offensive—as long as the speaker doesn’t cross the line separating speech and illegal action (or succeed in inciting others to engage in violent crimes).

Galliano, if he lived in New York, could not be prosecuted for giving vent to his bigoted views. (His defenestration from Dior, on the other hand, likely would stand.) In New York he would be a free man, although there are certain neighborhoods in Brooklyn and elsewhere that Galliano would be well-advised to avoid (to paraphrase Humphrey Bogart in “Casablanca.”)

The Constitution’s protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy–why else would government wish to discredit it?–and, by making the idea illicit, to increase its appeal and potential audience. This hypothesis is supported by the experience of China and other autocratic governments in censoring the internet.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open “marketplace of ideas” where its defects and shortcomings will be exposed through debate. For example, blogger-critics of Galliano–whose background is Jewish and Gypsy–were quick to skewer him with the observation that his affection for Hitler would have been reciprocated, during World War II, with a one-way trip to Dachau. France’s piling on of criminal charges is hardly necessary to discredit Galliano’s views.

Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn’t, protected. The Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective–even to the point of protecting expression that is false or extremely hurtful.

To foreigners, America’s protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not really disagree. Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

Intolerance of censorship is a powerful First Amendment value. It is a value worth remembering, and honoring, during Sunshine Week.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a nonprofit organization dedicated to protecting freedom of speech and the public’s right to know.