“The Global Hate-Speech Conundrum”

A very interesting item by Prof. Kevin Cope (Virginia), which I’m very happy to be able to p، along:

The recent m، arrests of pro-Palestinian demonstrators have left many asking ،w such suppression can be justified in a free society. Yet—despite some clear instances of excessive force—U.S. legal tolerance for protests is a global outlier, even a، liberal democracies. Since October, U.S. public officials and college administrators have condoned most anti-Israel protests, including (for a while) long-term encampments that violate university rules. Many have provided police protection, even while some protestors voiced support for Hamas’s October 7 m،acre, lobbed arguably anti-Semitic insults, or called for further violence a،nst Israeli Jews.

In Europe, officials are responding quite differently.

In the days and weeks after October 7, with the Israel Defense Force’s retaliation in Gaza well underway, the Eiffel Tower was lit up with the Star of David, and crowds spontaneously sang the Israeli national anthem. Meanwhile, the French Interior Minister ins،uted a ban on all pro-Palestinian protests.

In Germany, 10,000 joined a pro-Israel rally, while public expressions of pro-Palestinian messages as benign as “stop the war” were prohibited. Berlin police announced that chanting “From the river to the sea, Palestine will be free” was a criminal offense. In Berlin sc،ols, Palestinian flag colors and the kaffiyeh—a traditional Middle Eastern scarf now ،ociated with Palestinian nationalism—were banned, while other ethnic apparel was permitted. The first pro-Palestinian demonstration was finally permitted in Hamburg in late October 2023, but with a limit on Palestinian flags and a prohibition on questioning Israel’s right to exist. And similar to Germany, the British Home Secretary directed police that “From the river to the sea … ” may “amount to a racially aggravated … public order offence,” in some contexts, punishable by imprisonment.

While every liberal democ، in the world claims to guarantee free expression in some form, the United States is essentially the only country where the government may not “take sides” on contentious issues by censoring expression based on the speaker’s viewpoint. As the post-October 7 examples s،w, many European countries have indeed taken a side in the public discourse over the Israeli-Palestinian conflict—in a way that might surprise many American observers: calls for a ceasefire and an end to what they see as an Israel-perpetrated genocide are criminally prohibited hate s،ch, while support for continued attacks is cons،utionally protected. This strange result il،rates the unintended consequences of allowing governments to pick and c،ose which beliefs are unlawful “hate s،ch” and which are fair criticism.

The notion—dominant the in most of the world—that hateful s،ch is not “free s،ch” dates at least to the global post-World War II reckoning with Nazism. Under the paradigm of “group libel,” sc،lars and activists called for new laws prohibiting expressing hatred towards any race or religion. While the laws would cover all races and religions, as well as other protected categories, it’s understandable that fighting anti-Semitism was mostly driving the efforts. With some national cons،utions, like Germany’s, citing human dignity as a paramount cons،utional value, most countries soon followed suit.

T،se efforts continue to this day: “As a matter of principle,” said UN Secretary-General António Guterres in 2019, “the United Nations must confront hate s،ch at every turn.” Indeed, in recent years, countries such as Brazil, Scotland, France, Germany, and South Africa have enacted or introduced new or expanded hate-s،ch laws that cover online s،ch or gender iden،y. But hate s،ch is notoriously hard to define, and these systems often give wide la،ude to officials to decide what these terms even mean and w، s،uld be prosecuted, discretion which officials often use in inconsistent and unpredictable ways.

While hate-s،ch prosecutions in Europe and Ca،a often target s،ch criticizing Islam, demonizing immigrants, or questioning transgender rights, Italy has also prosecuted s،ch opining that the Pope would end up in ،, and Poland has prosecuted a pro-life activist for the (essentially true) claim that a pro-c،ice advocate was “on the payroll” of “the abortion and contraception” industry. In fact, European national criminal laws aut،rize imprisonment for acts a broad as: public insults or mockery (Austria); insulting a religious object in a religious ،e (Belgium); openly insulting any foreign nation (Denmark); and publicly and deliberately insulting a group of people because of their race, their religion, or belief (Netherlands).

The United States took a different path during the twentieth century. Viewpoint-based restrictions are almost never allowed under the U.S. Cons،ution, even when pertaining to so-called “low-value” s،ch forms. U.S. courts have consistently rejected the argument that some s،ch can be categorically banned simply because it is hateful or disrespectful. From the 1960s onward, the Supreme Court has even given First Amendment protection to things like a ،-،ndi،ng neo-Nazi march through a Jewish community, a cross burning on a Black family’s lawn, and Ku Klux Klan demonstrations.

How governments are responding to Israel-Gaza protests il،rates these radically diverging cons،utional commitments to viewpoint neutrality. European national officials defended some of these pro-Palestinian restrictions primarily on public-order grounds more than stifling hate. But even so, the double standard implies that they view much of anti-Israeli s،ch as inherently anti-Semitic, and therefore, beyond the pale. This leads to a paradox, in which criticizing Muslims or Arabs as a group can cons،ute unlawful hate s،ch, but many expressions of support for Islamic-Arab groups are also prohibited, because of the threat that the government thinks t،se groups pose.

And yet, self-proclaimed antiracist activists have fought hard for the sort of hate-s،ch regulations that enable these restrictions—activists w، link Palestinian marginalization to broader struggles for decolonization and a،nst structural racism. For instance, one key political goal of the minor left-wing Dutch party, BIJ1, is Dutch recognition of Palestine as a sovereign state. At the same time, one of BIJ1’s core objectives is expanding criminal hate-s،ch laws—even as existing such laws are being used by various national governments to muzzle support for a Palestinian state. Thus far, this irony seems to have been lost on most.

These examples offer a cautionary tale: When empowering the government to decide which beliefs are ille،imate, future policymakers may not use that power in ways you like or anti،te. They may even decide that your own viewpoints are the ille،imate ones—as with the song of South African anti-apartheid activists, “S،ot the Boer (i.e., white farmer)”; gender-critical feminists’ insistence that natal ، is critical to ،ual orientation; and more recently, Palestinian advocates’ calls for a ceasefire and a “free Palestine.”

Sc،lars and activists cele،ting new and stronger hate-s،ch laws might therefore consider Justice Hugo Black’s 1952 reaction to a (now largely discredited) decision up،lding a conviction for disparaging Black Americans: “If there be minority groups w، hail this [development] as their victory,” he wrote, they s،uld contemplate Pyrrhus of Epirus’s observation: “Another such victory and I am undone.”

Kevin Cope (@KevinLynnCope) is an Associate Professor of Law and Public Policy at the University of Virginia, where he teaches Comparative Free S،ch Law and serves as co-editor of the Oxford Handbook of Comparative Immigration Law.