Mark Pulliam misunderstands the antagonisms that underlay section 501(c)(3) and still undergird a host of other speech restrictions.
The curious case of Lars Hedegaard
Only actions, not words, can break bones. People can, however, be just as badly damaged by hateful things said about them. So why should not the criminal law be made to protect people as much from malicious words as from physical assault?
I raise this question in light of a common reaction that I have discerned among several North American commentators to news of the recent acquittal by the Danish Supreme Court on hate crime charges of free-speech campaigner Lars Hedegaard.
Hedegaard had incurred these charges as result of having made some disparaging remarks about Muslims in an interview with a journalist who subsequently published them verbatim. After being earlier found guilty under an article in Denmark’s criminal code that makes it a criminal offence to publish insulting remarks about people on account of their religion, Hedegaard was two weeks ago eventually acquitted on a technicality.
The seven Supreme Court judges who heard Hedegaard’s case unanimously accepted the plea of his counsel that his offensive remarks had not been intended for public consumption, and that, had be been shown an advance copy of where they were quoted, he would have ensured they were suitably amended to prevent any possible misconstrual of them as insulting to Muslims.
Although pleased by the acquittal, several American commentators have deplored the fact that anyone could possibly face criminal charges on account of such a statute as had brought Hedegaard to trial, and which are now common throughout Europe as well as much else of the western world. The article of the Danish penal code that had led to Hedegaard’s trial runs:
‘Any person who publicly or with the intention of dissemination to a wide circle of people makes a statement or imparts other information threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin, belief or sexual orientation, shall be liable to a fine, simple detention or imprisonment for a term not exceeding two years.’ [Article 266b)
The first American commentator to take issue with this statute was practising US attorney Ann Snyder, legal fellow at the Middle East Forum’s Legal Project. This Project was set up, as its website puts it, ‘to protect researchers and analysts who work on the topic of terrorism, terrorist funding, and radical Islam from lawsuits designed to silence their exercise of free speech’. In a piece published on that website the day following Hedegaard’s acquittal, Ms. Snyder wrote:
‘While congratulations are in order for Hedegaard… the court’s decision leaves Article 266(b) intact—meaning that this is anything but a decided victory for free speech. The Supreme Court… merely applied the law as written. Private speech… is protected. Public remarks, however, on the very same subjects remain fair game… if they are otherwise determined to violate the rather sweeping language of the provision… There is also the issue that… the process [of] being dragged through the courts… allows for speech-chilling abuse…And then there is the uncomfortable fact that he was prosecuted in the first place… That is no way to live in a purportedly “free” society. Article 266(b) and its ilk must be excised from Western laws once and for all.’
In a piece the National Review Online (link no longer available) published the very next day, Snyder’s sentiments were echoed by the redoubtable journalist, Marc Steyn, author of the chilling 2006 book Europe Alone in which he contends that Europe faces inevitable Islamisation under the weight of the demographic pressure brought about by mass immigration of Muslims and their much higher fertility rate than that of indigenous Europeans. Steyn observed:
‘Lars [Hedegaard] can never get back the years of his time that this disgusting prosecution consumed. Restraints on free speech and individual liberty in the name of identity-group rights are now routine in much of the Western world… And for every Lars Hedegaard willing to push things all the way to the Supreme Court, the broader lesson of his “victory” is that the average Dane understands the price of raising certain subjects is too high.’
Similar sentiments to those of Snyder’s and Steyn’s were repeated a week later by Karen Lugo, co-director of the Centre for Constitutional Jurisprudence and founder of the Libertas-West Project. In a piece published last Monday by the National Review Online entitled ‘The Death of Free Speech, Continued’, Lugo remarked:
‘Regulating speech in this fashion is devastating to the ordered development of a democratic society… [T]he highly general categories of legal offense… now cover beliefs, dogmas, and doctrines. Destructive ideologies that cry out for inspection are thus invited to propagate behind a veil… Speech restrictions undermine our very ability to sustain the social contract. In the rare event that they are needed, they must be fine-tuned to apply only to speech that threatens imminent harm. The public good requires that we rely on free speech itself – shame and moral opprobrium – to correct those who insist on saying what is rude or crude. Otherwise, as Hedegaard warns us, the prosecutor lies in wait.’
While deploring the abominable conduct in which some Muslims have engaged in in the name of their religion every bit as much as Jars Hedegaard and others, and while also being equally as concerned as Marc Steyn about Europe’s possible demographic, political, and cultural fate unless there is far better integration of its new Muslim population, I remain unconvinced that such laws there as led to Hedegaard’s trial are quite so pernicious or unnecessary as they all clearly claim to be.
It only takes a moment’s thought to be able to appreciate that, unlike the spiteful things children say from time to time to one another, which is really what the proverb about sticks and stones is about, adults can and do say things about each other that can really do them profound harm. No one ever better explained the precise nature of that harm than Thomas Reid, successor to Adam Smith’s chair at the University of Glasgow and founder of the Scottish school of common sense philosophy. Writing on what he called ‘natural jurisprudence’ in his 1788 work Essays on the Active Powers of the Human Mind, Reid observed that:
‘A man may be injured, in his person… his family… his liberty… his reputation… his goods or property … and, lastly, in the violation of contracts… with him… The different branches of justice, opposed to these different kinds of injury, are commonly expressed by saying that an innocent man has a right to the safety of his person and family, a right to liberty and reputation, a right to his goods and to fidelity to engagements with him… The four first… are, by the writers of jurisprudence, called natural rights of man, because they are grounded in the nature of man as a rational and moral agent… When a man’s natural rights are violated, he perceives intuitively, and he feels, that he is injured… He perceives that injury is done to himself… And that he has a right to redress… The natural principle of resentment is roused… and excites him to defend his right… and expect [just retaliation] as due and deserved.’ [Essay V, ch. V]
It is the purpose of these so-called hate crime laws to protect vulnerable minorities from the injury they genuinely do sustain when remarks are published about the groups to which they belong which make false detrimental claims about them. For the authorities to allow all such false disparaging remarks to go unpunished adds insult to the injury they sustain. For it allows the impression to stand that nothing wrong has been said and no injustice to them has been done.
Americans who like to gloat about just how much the First Amendment spares them such oppressive hate speech laws would do well to remember the outcome of the 1952 Supreme Court case of Beauharnais v. Illinois. There, albeit by a 5 to 4 majority, the Supreme Court declined to overturn through invoking the First Amendment a $200 fine that had been imposed by a lower Illinois court on Joseph Beauharnais for having distributed on Chicago street-corners a leaflet containing the most appallingly disparaging remarks about black Americans. The Illinois statute which had brought Beauharnais to trial ran:
‘It shall be unlawful for any person… to… publish, present or exhibit in any public place in this state any[thing]… which… portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, colour, creed or religion… which exposes the[m]… to contempt, derision, or obloquy or which is productive of breach of the peace or riots.’ [Illinois Criminal Code, lll. Rev. Stat. 1949, c. 38, s. 471, Division 1, section 224a.]
What Beauharnais had asserted of blacks in his leaflet was very similar n character to what Hedegaard had asserted of Muslims in the remark that led to his prosecution
The leaflet Beauharnais distributed had run:
‘Preserve and protect white neighbourhoods… from the constant and continuous invasion, encroachment and harassment of the Negroes… If persuasion and need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions… rapes, robberies, knives, guns and marijuana of the negro, SURELY WILL.’
Hedegaard had similarly asserted of Muslims in the remark which led to his prosecution:
‘They rape their own children.’
After his remark was published. Hedegaard was quick to explain he had not been wishing to assert that all Muslims raped their children, only that the incidence of family rape among them was significantly higher than it was among other groups. As he put it:
‘Subsequent to the publication of the above comment, I have issued a press statement, been quoted in several papers and twice appeared on national television… [in which] I have tried to explain that my statement: “They rape their own children” should not be understood to imply that every Muslim in the world behaves this way. It is akin to a statement such as: the Americans make good films. This does mean that all 300 million Americans are filmmakers or that all American films are good.’
Doubtless, Hedegaard never thought, nor meant to be understood as asserting, that all Muslims raped their children. Given his clarification of his remark, perhaps the prosecution should have been dropped, especially since it was only made in private, which was why, of course, he was eventually acquitted of the hate speech charges. However, all this is besides the point when considering whether there should be laws such as those which led to his trial and that of Beauharnais.
I for one cannot see why there should not be, given how deeply injurious are some of the appalling and false sweeping generalisations often made about minorities, and how wounding and damaging they must be to them, especially if allowed to go without reprimand by the authorities.
As Jeremy Waldron observed in his 2009 Holmes Lectures at Harvard Law School, to which I am indebted for information about the Beauharnais case, to say that groups might and do deserve legal protection from hateful false generalisations about them is not to say any of their beliefs or their religion might need equally legal protection from false and wounding things said or represented about them, however wounding they might also be. As Waldron explained:
‘There is a big difference between protecting individuals from defamation (based on some denigration of group characteristics), and protecting them from offense, even when the offense goes to the heart of what they regard as the identity of their group… The civic dignity of the members of a group stands separately from the status of their beliefs… [T]he specific concern about group libel does not… include protection of the[ir] religion itself or its founders.’ [Jeremy Waldron, ‘Why Call Hate Speech Group Libel?’, Lecture 1 of Dignity and Defamation: The Visibility of Hate, 2009 Holmes Lectures: Harvard Law School: October 5-7 2009]