Je ne suis pas Charlie: Hate Speech amidst “Freedom” Rhetoric

Acts of violence and murder are abhorrent, from terrorism to war, the death penalty to the violent torts and crimes of daily life. This note is not about the subject of violence per se, but given the 2015 attacks against the French satire magazine, Charlie Hebdo, this preface is crucial.

The attacks on the Parisian magazine bring to the spotlight the otherwise taken-for-granted principle of free speech. It seems when people talk about their rights to free speech, they believe they have the right to say whatever they want whenever they want. Clearly that’s not true. In the United States, free speech is limited by laws prohibiting defamation of character (e.g., libel and slander), words that incite imminent violence against other specific persons, or obscene speech, as well as restrictions on the rights of students in public schools and rights of speech on private property. Yet what remains legal in the United States, in contrast to laws in Europe and Canada, is what is typically called hate speech — that is, speech that incites hatred, discrimination, or racism based on ethnicity, nationality, religion, gender, sexual orientation, or disability. In France and in other EU nations, such hate speech is outlawed by the Press Law of 1881, the Pleven Act of 1972, the Gayssot Act of 1990, and the law of December 30, 2004 creating the High Authority for the Fight Against Discrimination and Equality (HALDE). In 2011, world famous Christian Dior designer John Galliano was punished under these laws when he made various pro-Nazi remarks — he was nearly jailed for such violations.

Of course, free speech and political critique are alive and well in France and other nations with such hate speech restrictions. Like any law, these hate speech laws certainly require refinement to ensure they are not over-reaching or enforced with bias. Sadly in France, where anti-Islamic sentiment is ever-increasing according to various news reports and statistical surveys of its populace, hate speech against Muslims is often overlooked by the authorities or even worse sanctified as the exercise of free speech. For example, despite their years of aggressively racist cartoons that make Galliano’s 2011 comments pale in comparison, the Charlie Hebdo magazine members were lionized as free speech activists by French President Hollande and millions of French supporters after the January 7, 2015 murderous attack by armed gunmen on their Paris headquarters.

Thus by the acts of the terrorists who attacked the magazine, the Charlie Hebdo cartoonists have been made into martyrs of free speech. We can and should condemn the acts of the terrorists, but it is simply too much to applaud the efforts and speech rights of a racist organization such as Charlie Hebdo. I cannot imagine the same being done if the meeting-houses of the KKK, Aryan Nation, or NAZI party were to be attacked by gunmen. Certainly just because they are comedians of a sort does not mean they can’t also be acting like racists: Michael Richards (aka “Kramer” from Seinfeld) proved that to be true in his infamous 2006 standup routine where he shouted the N-word several times at the audience. It is even more problematic since the actions of Charlie Hebdo in publishing such racist images as these is actually in violation of the French hate speech laws, and their hate speech has been financially rewarding enough to pull them from the brink of financial ruin since such anti-Islamic images are particularly popular in France: a country where according to a Spring 2014 Pew Research Poll about 27% of French citizens hold negative opinions of Islam and Middle Easterners, and where the Islamic face veil, the hejab, is illegal. As the largest minority group in France and the historical target of racism there, Muslims need the protection of France’s codified hate speech laws, but the nation’s willful failure to protect French Muslims from such hate speech is clear, disappointing, and frightening.

Clearly if the same hate speech against Muslims as has been exhibited vigorously for years by Charlie Hebdo and others were to target those of African or Jewish descent, disabled people, or homosexuals, the public outcry and legal sanctions would be stern as recent French history has shown. Certainly we would not expect to see the French President speaking publicly in support of such discriminatory speech as has done in the case of Charlie Hebdo, particularly since Pres. Hollande has a legal mandate to uphold French law rather than excuse or applaud its violation.

In short, the USA and all the world’s nations stand to benefit from intelligently drafting and fairly enforcing laws that restrict and punish hate speech whilst upholding free speech to ensure that political, social, and artistic creativity flourish and racism and illegal discrimination are eradicated from the public domain. Laws rationally banning public hate speech can be drafted and should be drafted, for nobody can doubt the power and efficacy of the pen. Surely we can all learn this lesson from the martyred artists of Charlie Hebdo, may they rest in peace.

For example, such a hate speech law was drafted and recommended to all member states by the United Nations in the International Convention on the Elimination of A ll Forms of Racial Discrimination as follows [note: a “Convention” is also another word for a law]:

“In the light of the provisions of the Convention and the elaboration of its principles in general recommendation №15 and the present recommendation, the Committee recommends that the States parties declare and effectively sanction as offences punishable by law:

(a)All dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means;

(b)Incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin;

©Threats or incitement to violence against persons or groups on the grounds in (b) above;

(d)Expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination on the grounds in (b) above, when it clearly amounts to incitement to hatred or discrimination;

(e)Participation in organizations and activities which promote and incite racial discrimination.”

Yet as it has done too often with other honorable laws suggested by the United Nations (e.g., the Convention against Torture, the Convention on the Rights of the Child, etc.), the United States objected to such a law, stating in part:

“Banning and punishing offensive and hateful speech is neither an effective approach to combating such intolerance, nor an appropriate role for government in seeking to promote respect for diversity. As President Obama stated in a speech delivered in Cairo, Egypt in June 2009, suppressing ideas never succeeds in making them go away. In fact to do so can be counterproductive and even raise the profile of such ideas. We believe the best antidote to offensive and hateful speech is constructive dialogue that counters and responds to such speech by refuting it through principled arguments, causing the hateful speech to fall under its own weight. In addition, we believe government should speak out against such offensive speech, and employ tools to address intolerance that include a combination of robust legal protections against discrimination and hate crimes, proactive government outreach, education, and the vigorous defense of human rights and fundamental freedoms, including freedom of expression.”

Basically, the USA refuses to ban hate speech because it believes that the remedy to hate lies in free dialogue. That is a seductive point indeed, but it does not hold up so well when tested.

For example, in response to such notions, when Canada’s Supreme Court outlawed hate speech in the seminal 2013 case of Saskatchewan Human Rights Commission v. William Whatcott et al., the Court’s opinion succinctly justified its ruling by stating that hate speech effectively shuts down dialogue and ultimately leads to the disenfranchisement and attack of susceptible minority groups that hate speech targets.

The Supreme Court of Canada beautifully argued its point as follows:

“The objective for which the limit is imposed, namely tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination, is pressing and substantial. Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. […] Political expression contributes to our democracy by encouraging the exchange of opposing views. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse. Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate. […] The benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression. Section 14(1)(b) of the Code represents a choice by the legislature to discourage hate speech in a manner that is conciliatory and remedial. The protection of vulnerable groups from the harmful effect emanating from hate speech is of such importance as to justify the minimal infringement of expression.” [Emphasis added.] Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467.

Enough said.

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Ali Shahrestani, Esq.

Ali Shahrestani, Esq.

Exclusive Legal Representation for Discerning Clients. Serving CA, NY, MA. Business, Criminal, Divorce, & Education Law.

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