America is the world’s great island nation: we constantly register our puzzlement that the world does not share our laws and values by insisting that they mostly do, or will soon, or only don’t because of some peculiar oddity, intrinsic to their being, well, foreign. The well-established truth that gun control controls gun violence, for example, is one accepted by every other rich country—but you can still hear that the efficacy of gun control is undecided because there are Americans who think it is, just as you might think that the efficacy of vaccination is undecided because you can find Americans who think that, too. Insularity is the national plague.
This somewhat exasperated reflection is propelled, in part, by recent sermons about standards of free speech, directed by us toward many thems. Many Americans have recently been puzzled or even troubled by the French government’s aggressive pursuit of what are sometimes called “hate-speech” crimes, particularly because it seems hypocritical or inconsistent after the national outpouring of emotion following the Charlie Hebdo massacre. The Charlie cartoonists were, as I’ve written, certainly equal-opportunity offenders, but they did, doubtless, often offend. Why was their speech protected and others’ not? Our indignation often centers on the case of the “comedian” Dieudonné, a performer with a long history of contemptuous anti-Semitism, whose act of identifying himself, on Facebook, with Amedy Coulibaly, the terrorist who killed Jewish hostages at a supermarket, was the cause of his difficulties. “I feel like Charlie Coulibaly,” he wrote, and this act led to his arrest and indictment.
The objection to the French view is clear and, from the point of view of the civil-libertarian absolutism that we Americans at least like to pretend to, consistent: if you’re allowed to insult Muslims and their sacred themes, why not Jews and theirs? Why are some taboos protected with a shield and others merely with a shrug? Why can you say what you like about Muhammad and be made a hero, and get hauled into court if you say mean things about a Jewish journalist? Apologias for the European position have tended, in turn, to be apologetic above all, turning on the idea that this is a French peculiarity, rooted in French history of laïcité and the Republic’s struggles with a powerful and institutionalized clergy.
That’s all perfectly true, but limiting, since the more significant truth is that many, many other countries—probably the majority of what we usually call free ones—also have laws, with varying degrees of strictness, against hate speech, or “incitement to racial hatred.” The world on the whole regards our approach as uncivilized and confused about the significant distinctions that are necessary for truly free speech. My own homeland of Canada, for instance, whose peaceful and non-sectarian history could not be more unlike that of France, has very strong hate-speech laws, and a complicated jurisprudence governing them.
The absolutist American view, let’s stipulate at once, still has much to be said for it. It says that once the state gets into the business of distinguishing acceptable dissent from unacceptable dissent then what we have is no longer dissent. Instead, we have state-sponsored and defined dissent, like that of the tiny “dissident” parties that were allowed to persist, once upon a time, in Eastern Europe, pendant to the chief Communist one. As John Stuart Mill said, in what is still the greatest defense of freedom of speech ever written, the free contest of ideas, even bad ones, is necessary to discover the truth of things. Or, to borrow a turn of phrase from the N.R.A.: it takes a good man with a pencil to stop a bad man with a pen.
But the view that governs the opposite position, in Canada and Europe alike, is not irrational or truly hostile to liberty. The laws and rules vary, but all have a simple distinction at their core, which is that criticizing an ideology, including a religious ideology, however vociferously, is different from inducing hatred of a people or persons. In plain English, hate-speech laws are based on the simple truth that there is a huge difference between an insult and a threat, and that it isn’t actually that hard to tell one from the other.
In an open society, we all have to put up with insults. This is difficult, and sometimes maddening, inasmuch as the person offering the insult is often an idiot and the person being insulted a saint. But, with an insult, you can always shrug and walk away. This is not to say that the act of insulting someone is not sometimes morally despicable. But many—indeed, almost all—morally despicable things are not crimes. We do not put people on trial for being mean to their spouses or for undermining their kid’s confidence or for writing dumb book reviews. We might want to, but we don’t.
We have to put up with insults, but we don’t have to tolerate threats. Saying that someone’s religion is ridiculous is different—discernably, measurably, significantly different—from saying that some group should be exterminated. Mocking your prophet is not at all like threatening your person. (Some hate-speech laws, one should add, do use language that protects against “insults”—and those laws and their language are indeed very hard to defend.)
Blasphemy is ridicule directed at an ideology; hate speech encourages violence directed at individuals. Judeophobia—the mockery of the religion of Moses, of the kind that Voltaire engaged in at length—ought to be protected, no matter who engages in it, just as “South Park” ’s mockery of Mormonism should. But Jews and Mormons must not be threatened, either in the practice of their faith or in their confidence in their own continued well-being. Dieudonné, in announcing his solidarity with a man who had just murdered four Jews, crossed an easily discernible line—just as a Jewish activist announcing, say, “Je suis Baruch Goldstein,” referencing the Jewish mass murderer of Palestinians in Hebron, ought also to be vulnerable to the law.
It is perfectly true that the European and Canadian examples are rooted, like all law, not in abstract reasoning but in specific experience. In the French case, it is not, however, so much the specific experience of the laicity as that of the Shoah. Hate speech directed against Jews was once allowed to lubricate the transfer of Jews. Saying that someone can’t pretend in public that the Holocaust didn’t happen is a way of saying that you can’t pretend Jews weren’t murdered for being Jews. A view of free speech that allows, as one French minister has said, “Three minutes for the Nazis, three minutes for the Jews” makes Jews vulnerable again by granting reason and plausibility to their persecutors.
But how (the American First Amendment absolutists ask) can we make these distinctions with any confidence? Isn’t one man’s burlesque another man’s bitter menace? How can we make a law telling threats from insults? Well, discriminating between bad things and good things they may resemble is why we have laws, and deciding if the thing is truly different is exactly why we have courts. No one proposes some system of automatic condemnation; what the European (and Canadian) model entails is indictments, detainments, trials, and fines. Indeed, one of the most striking things about hate laws is how hard it is to enforce them, and how difficult it is—and ought to be—to get a conviction. (Michel Houellebecq was tried for threatening Muslims not long ago, and properly acquitted.) The absence of absolute rules on a subject does not mean that the only alternatives are anarchy or authoritarianism. Arguments can be made, and arguments won. Making discriminations is the business of civilization.
Mill thought that real “harm” was the only reason to ever censor free speech. How to define that “harm” will always be a controversial subject—but real harm is surely something more than hurt feelings. Ideologues, of course, disagree, for they are people for whom selves and ideas have become so inseparable that any harm done to one is indistinguishable from an injury done to the other. But this is why we call them ideologues. The rest of us can recognize that mocking a faith is not the same as speaking in ways that threaten a new massacre, or condone an old one. This is the reason that so much of the free world sees questions of free speech other than Americans do. They may well yet move toward us. But we may well yet move toward them.