Sunday, February 24, 2013



Yesterday I wrote about three events that signal a changing world.  Today I realized I had forgotten to mention a fourth: the disagreement over whether there should be limits to free speech.

In recent days in France there was a spate of anti-Semitic attacks on Twitter. The French high court ordered the social network company to "set up as part of the French platform an easily accessible and visible system that would allow users to alert the site to illegal content which constituted an apology for crimes against humanity and incitement to racial hatred".

An initial French ruling came in October, shortly after German police had requested that Twitter shut down an account used by a German neo-Nazi group.

In Russia, Pussy Riot sympathizers last week marked the first anniversary of the ‘blasphemous’ event in a Moscow cathedral that ultimately led to the imprisonment of two singers.

These stories illustrate interpretations of freedom of speech that, while not identical, all differ widely from that which Americans take for granted.  And this raises a serious question, as ever greater parts of the world come to grips with modernity.

The basic question is this: does individual freedom of action (here meaning speech), trump the good of an entire society?  In the United States  the answer has been a resounding ‘yes’, based on the First Amendment, which provides no limits to the right of free speech.

In drafting the constitutions of post-war Europe, Western leaders had vividly in mind the role played by Nazi Propaganda under Joseph Goebbels in whipping up hatred of Jews, Gypsies, Communists, Gays and any other group that differed from the Aryan norm, as did the drafters of the U.N.‘s founding documents. The Universal Declaration of Human Rights proclaimed by the UN General Assembly in 1948 provides, among other things that:

"Article 29 (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

The post-war European constitutions followed suit linking the notion that “Everyone has the right to life, liberty and security of person”, to acts not only of deed but of speech that could threaten that right. Indeed, the European Convention on Human Rights drafted in 1950 by the then newly formed Council of Europe, and which all new Council of Europe member states are expected to ratify at the earliest opportunity, provides the right to freedom of expression, including the freedom to hold opinions, and to receive and impart information and ideas. However it states that:

"(Article 10): “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

It’s clear from these documents that across the pond different values hold sway from those passionately defended by many Americans.  Post-war Europe reacted to the Holocaust and the anti-Semitism that gave rise to it by ensuring that governments (who declare war) be responsible for the overall well-being of their citizens.  This is not only the basis of the welfare state - an economic construct - but of limits on freedom of expression/speech which Americans find unacceptable.

And yet, these notions do go together: if the state - as the embodiment of the notion of community - is expected to take responsibility for the material well-being of citizens, how can citizens not expect it to define laws of social decency?

The American constitutional tradition rests on the notion of freedom to believe, originating in the Protestant rejection of a venal Catholic church and insistence on the right of each human being (men, at the time) to relate to God without interme-diaries. In the late eighteenth century  little harm could come from the unfettered expression of contempt for another - or his religion. Congress engaged in heated arguments - as European representatives continue to do. The founding fathers could hardly have imagined a time when debates would have to be politically  correct.

For the purposes of this discussion, it could be said that the era in which we live began at the end of World War II. Having led the fight against Nazi Germany, Europe’s socialist and communist parties acquired strong parliamentary representation, resulting in constitutions inspired by the egalitarian and responsibility-oriented U.N. charter, and that of the Council of Europe. Meanwhile, although it championed the founding of the United Nations, the United States remained wedded to the eighteenth century ethos of its own Constitution.

While Europe gradually lost its colonies, the United States gradually acquired new civil rights for its minorities. But it was the European codification of rights that newly independent nations adopted, not the American. And it is the United Nations Charter of Human Rights that has become the international norm, not the amend-ments to the United States Constitution. The former recognizes that rights must be accompanied by responsibilities, on the part of both citizens and governments. The latter places individual rights above all else, giving rise to insoluble contradic-tions.

This might work in the abstract, but precisely, in a world in which mass religions compete against secular states for the right to dictate morality, the American left needs to recognize that its attitude toward free speech is incompatible with its egalitarian ethos.

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