'Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States' by Ioanna Tourkochoriti in (2014) 45
Columbia Human Rights Law Review 552-622
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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.