The 2011 legislative proposal by the French Government to criminalize denial of the Armenian Genocide — and the legislation’s invalidation by the French Constitutional Council on rule of law grounds without seriously addressing the free speech concerns underlying the case — raised once more the question of the limits of hate speech protection and of political tolerance in a democratic society. Is it legitimate for the state to intervene in order to protect its citizens from offensive speech or from the danger of arriving at erroneous opinions? Hate speech manifests itself today in various forms, but in general, European law is more restrictive of hate speech than U.S. law. This Article presents the different legal responses in Europe and the United States and evaluates them. Whereas most analysts take an "all or nothing" approach to these issues — believing that, if limits are placed on hate speech, then those limits should apply broadly to hate speech in all of its manifestations — the analysis in this Article shows why we should distinguish between different types of hate speech for philosophical reasons grounded within liberalism. The Article proposes a philosophical approach that justifies the punishment of group defamation while opposing bans of certain political parties and the criminalization of the contestation of historical facts.Tourkochoriti argues that
Some of Mill’s arguments in favor of free speech are very insightful concerning the criminalization of contestation of crimes against humanity. In the academic context, freedom of expression must be defended rigorously. Independently of whether one accepts Mill’s ultimate empirist presuppositions, Mill offers an interesting procedural model of scientific development whose implications escape the intentions of its enunciator. History and experience do show that scientific progress is based upon the succession of one paradigm to another. Although it may not be plausible to assert that the state or private academic institutions must actually fund or otherwise promote research contesting the Holocaust, for example, the criminalization of discourse that actually does can hardly be justified. Dworkin’s argument that offense is not a valid justification to criminalize the contestation of crimes against humanity is also plausible in this case. The danger that a part of the population might feel offended by the contestation or relativization of the importance of crimes against humanity is not sufficient to justify restrictions, as history shows. A high level of offense from doubts expressed about the worst genocide in history is a legitimate sacrifice for liberty.
Furthermore, the contribution of the philosophical current of hermeneutics consisted in underlining the subjectivity of any human attempt to understand the world. From the Kantian perspective, even the distinction between the positive and the natural sciences has been relativized. Kant’s contribution to the foundation of hermeneutics consisted of stressing that all objects are experienced through the lens of human subjectivity. The external objects exist “only for and in consciousness.” Dilthey’s distinction, which claims that natural science consists in “explaining” and human sciences make us understand, can be criticized through the lens of Heideggerian phenomenology. According to the latter and its application by Gadamer, in the domain of art and history the role of the subjectivity of the interpretive subject is dominant in any attempt to apprehend the world, either “physical”—the object of positive sciences—or “mental”—the object of history and other theoretical sciences.
Truth is a quality that is inextricably bound with the method we use for its verification—the methodology one uses to define the object being verified cannot be separated from our judgment of something as true. Experimental truth, however, is circular in that it presupposes its own scientific frame: the scientific object framed by the scientist is within the assumed boundaries of the perceived world of the scientist. What is perceived is the reference point of scientific objectivity. “[T]he advent of experimental science is an event in our cultural history, just like literature, theology or politics.” But science is circular in another sense as well: man is the object of science and also the subject of culture. Science is founded in a circle that presupposes scientific activity and man as subject, while at the same time reducing man to the same measure of objectivity of its perceived object. Science as a “theoretical praxis” is constituted by the decision “to suspend all affective, utilitarian, political, aesthetic, and religious considerations and to hold as true only that which answers to the criteria of the scientific method . . . .” Truth is associated with science as being from it and like it.
Concerning the positive sciences, truth is also dependent on the method of interpretation. Thomas Kuhn describes the succession of one scientific paradigm by another. Kuhn calls “paradigms” the accepted examples of actual scientific practice, which include “law, theory, application, and instrumentation together,” and which provide models from which spring coherent traditions of scientific research. Today, for example, some Aristotelian beliefs about nature are called myths; however, “myths can [also] be produced by the same sorts of methods and held for the same sorts of reasons that now lead to scientific knowledge.” In all schemes of interpretation which have been used by humans to make sense of the world, there has been an “arbitrary element, compounded of personal and historical accident,” that, in combination with “some set of received beliefs,” forms the understanding of the world “espoused by a given scientific community at a given time.” Scientific practices are defined by traditions, which are rejected and substituted by others that are incommensurable with them. The professional community evaluates and reevaluates “traditional experimental procedures,” altering the “conception of entities with which it has long been familiar” and shifting “the network of theory through which it deals with the world.” Each school of thought is based in reality upon some particular metaphysic. Professionalization in science leads to “an immense restriction of the scientist’s vision and to a . . . resistance to paradigm change.” Every scientific revolution is, for Kuhn, a reconstruction of commitments of the scientific community. Kuhn ends his book noting that “scientific knowledge, like language, is intrinsically the common property of a group” and thus “to understand it we shall need to know the special characteristics of the groups that create and use it. Durkheim had also noted that modern science works for us because we believe in it. The belief in science in our disenchanted world comes from the need of our societies to be enchanted.
Radical critics like Michel Foucault underline the creative power of the interpreter inevitable in any domain of human science or other activity. The discourse of all historical approach to reality is to remove discontinuity among historical facts, rearranging it in a way as to reveal a continuity of events. All scientific discourse presupposes an authority recognized as competent to form that discourse, which thus exercises power upon its object. Scientific discourse develops its own rules, which form the objects of which they speak.
Beyond the two radical positions of subjectivism and objectivity, intermediate approaches stress the subjectivity of the historian in reconstructing or re-enacting historical fact. History is the result of both historical evidence and of the imagination of the historical agent. According to this view, we expect history to have a certain objectivity in an epistemological sense, and to present what thought can make understood and put in order. At the same time, it is expected from the historian to have some subjectivity that is suited to the objectivity proper to history: the subjectivity of reflection. By establishing their working hypotheses, historians reconstruct events or a series of events or situations; their task is to compose and construct a retrospective sequence of phenomena. Their analysis tries to find the relationship between the phenomena they have distinguished, proposing an understanding of situations. The study of history is a will to understand rationally, to build a “rational enterprise of analysis.” The historian’s subjectivity inevitably intervenes in the choice of the interpretative schemata, as the rationality seen in history depends upon the evaluation of the interpretative subject. The scientific object is always relative to an ordered mind. History as research always presupposes a point of view of departure, a point of reference in order to make sense; this point of reference is identified by the investigative ego. Truth, however, is not monadic—the adequacy of a person’s answer to his problematic—but instead is intersubjective. The work of a historian is tracing an analogy containing a reenactment of the past in a historical distance, which is a part of the dialectic between future, past, and present: an incomplete abstraction.
History is a reconstitution of the past for human beings engaged in the network of the human realities of today that conditions their perspective towards the past. Belonging to a national group, or other social classification, motivates an interest in history, as well as general curiosity and “a demand for intelligibility.”
“Historiography is [thus] the reflection of [one’s] situation, the backward projection of . . . idea[s], [and] the vision of the past is the reflection of [one’s current] values.” Historians look at the past with an interest in issues that deal with the anxieties of their time; they are trying to respond to questions formed by the spirit of their time. At the same time, reality is the result and the postulate of historical analysis. Scientific knowledge is inseparable from living human beings and their history. Thus, there is not one monolithic historical reality, which is to be reproduced with fidelity on behalf of the historian; historical reality as a human reality is equivocal and inexhaustible. The meaning of acts of men is inexhaustible, as it is, in reality, the meaning of the past for the various successive interpreters of the present. The plurality of the universes in which human existence manifests itself makes equivocal the perspectives of each interpreter. Restating ideas, constructing facts, and organizing consciences are subjective by definition: history cannot be objective because it cannot be detached by the interpreter, the historian, or the human being who attributes meaning to facts. The evolution of our perspectives transcends the antithesis between subjectivism and objectivism, as well as the opposition between the present and the past. Historical facts are thus individual reconstructions, which are historical to the extent that they can be attached to the whole of common representations or collective ways of action. The historian, marked by the context that leads him or her to become conscious of history, thus expresses simultaneously the community of her time and the community she examines. The historical vision is relative to the present: the static and historical renewals in the interpretation of facts or institutions, the relativity of the explanations of origin, the tendency to a retrospective rationalization, which suggests the necessity of becoming. In the case of general history, the orientation of the perspective tends to be confounded with theory, just as it is difficult to separate factual judgments from evaluating ones. Objectivity is thus impossible for the historian interpreter, since human events, equivocal and inexhaustible, can be comprehended in multiple ways. Individual perception is by definition relative: history aims at an object that has passed, but which also finds existence only in human minds and changes with it.
“History is the realm of juxtaposition” where the historians themselves define the elements of a plot, which is a human mixture of material causes, aims, and chances that they consider important. The totality of phenomena cannot be the object of study, but only certain aspects of that study. Historians relate plots which are like itineraries that they mark out at will through the field of events, those events themselves having no natural unity, being instead a decoupage of what one freely makes in reality, an aggregate of the processes in which substances, humans and things interact. The terrestrial world is complicated and our truths are bound to be partial. Subjectivity does not mean arbitrariness; rather, it means a choice of features that are deemed pertinent or not. The judgment of which events are deemed worthy of history is dependent on the value the historian attributes to them, on the basis of the plot that she has chosen in her effort to respond to the problems of her time. Rather than explaining, history proposes understandings of human behavior and events: it is the meaning that the historian gives to specific events. The historian unfolds a narrative by making explicit links among events which he or she calls “causes” while being aware that history is made of “things that might be different.” The historian’s opinion of facts is indissociable from the facts themselves. History is a work of art: “Originality, cohesion, flexibility, richness, subtlety, and psychology are the qualities necessary to say with objectivity ‘what really happened.’” History reveals an understanding of the concrete. In this respect, what differentiates history from other “sciences” is that they are feasible in the sectors “where universal determinism (which it is everywhere impossible to follow in its inexhaustible detail) is presented with more global, comprehensive effects and can then be deciphered and handled by an abridged method that applies to macroscopic effects: that of models and that of predominant effects.”
Historians, like all other scientists bound by the limits of human understanding, merely propose interpretations of the world and of phenomena, which they call and characterize as historical facts. Any regulation concerning the debate among historians about historical fact is thus inappropriate and ineffective.Tourkochoriti concludes -
This Article argues that there is a strong philosophical justification for limiting hate speech when it manifests as group defamation. Beyond the technical difficulties of applying relevant legislative prohibitions, the impossibility of distinguishing between speech and action strengthens the need to punish manifestations of hate speech addressed to specific individuals. Defamation of private persons does not promote the public use of reason. Freedom of expression is a fundamental human liberty tied to the very possibility of developing human consciousness, abstract thought, and civilization. Human consciousness is social and develops only through language and interaction. If it is language and interaction that elevates human beings to the dignity of being human, discourse that negates respect for humanity should be limited when it concretely manifests as an insult.
Hateful defamatory speech negates the very possibility for social interaction and prevents the perpetuation of the endless debate of thoughts and ideas. The criminalization of concrete insults addressed to specific persons with intention to harm is justified. This argument does not apply to the Internet, where direct face-to-face interaction does not exist. Filtering hateful messages that Internet users might unexpectedly encounter is justified. However, limitations on the discourse of political parties and bans of political parties are founded on a performative contradiction in reference to the principle of democracy. Future generations should not be denied their possible choice to negate the social contract. Allowing them freedom to participate in such parties might lead to a different constitutional democratic equilibrium that, instead of negating democracy, leads to its evolution. Allowing freedom for extremists allows democracy to come into contact with the reality of its functioning or dysfunctioning. Similarly, the criminalization of the contestation of historical facts that seem offensive is an inappropriate measure. Debate leads to a better understanding of the relevant historic events in the collective effort by humanity to make sense of the world.