By Karen Lugo
When an opinion on sociological trends or a critique of a group ideology results in criminal charges of hate speech, liberal democracy is in danger.
The Danish supreme court has just highlighted that danger. While deciding to acquit Lars Hedegaard, president of the Danish Free Press Society, of intending to speak hatefully for public dissemination, the court emphatically affirmed a statute according to which anyone who “publicly or with the intent of public dissemination issues a pronouncement or other communication by which a group of persons are threatened, insulted or denigrated due to their race, skin colour, national or ethnic origin, religion or sexual orientation is liable to a fine or incarceration for up to two years.”
The prosecution of Hedegaard resulted from remarks that he made during an interview and contends were electronically distributed without his permission. Although Hedegaard explained that he did not intend to accuse the majority of Muslim men of abusive behavior, Denmark’s Office of Public Prosecutions deemed his reflections on the incidence of family rape and the commonness of misogyny in Muslim-dominated areas to be criminally insulting.
The trial-court judge did not find that the prosecution met its burden to demonstrate that Hedegaard meant his comments for public distribution. But the Office of Public Prosecutions appealed to the Copenhagen Eastern Superior Court, in which Hedegaard was convicted. This reversal was based upon the elastic legal standard that Hedegaard “ought to have known” of the potential for dissemination of his remarks.
Upon receiving the guilty verdict, Hedegaard noted that “the real losers [were] freedom of speech and Muslim women,” and wondered how women could be protected “if we risk getting a state sanctioned label of racism” when drawing attention to their plight.
After two years of arguments, the seven-member supreme court declined to apply the lower court’s “ought to know” standard, but affirmed the statute under which Hedegaard had been prosecuted, with its many ambiguities and invitations to abuse. As Hedegaard has said, the result still logically means that one can be criminally liable for speech deemed racist or offensive if one does not “demand written guarantees that nothing be passed on without express approval.”
Regulating speech in this fashion is devastating to the ordered development of a democratic society. First, as Hedegaard’s trial demonstrated, truth is not a defense. In fact, sociological data that would substantiate his observations were not admissible in court. As Hedegaard complained, “the defendant is not allowed to present evidence or call witnesses who might confirm his contention that the Islamic treatment of women is incompatible with the norms of a civilised society.”
Second, the highly general categories of legal offense do not merely seek to protect races of people — hard enough to define — but now cover beliefs, dogmas, and doctrines. Destructive ideologies that cry out for inspection are thus invited to propagate behind a veil.
“If our Western freedom means anything at all,” Hedegaard argued before the court, “we must insist that every grown-up person is responsible for his or her beliefs, opinions, culture, habits and actions. The price we all have to pay for the freedom to disseminate one’s political persuasion and religious beliefs is that others have a right to criticise our politics, our religion and our culture.”
America is not as far behind Europe in policing thought and speech as it may seem. To be sure, when the U.S. Supreme Court has heard cases, such as Snyder v. Phelps, involving the right to speak candidly on matters of public concern, it has consistently upheld the right of individuals to discuss and debate — even protecting cruel and “hurtful speech on public issues to ensure that we do not stifle public debate.” American appellate courts have also been vigilant in fending off speech restrictions that are vague or so broad as to invite oppression and arbitrary enforcement. Yet not all appointed or elected rulemakers are as inclined to respect public debate. Four Democratic New York state senators have recently argued for a “more refined First Amendment,” declaring that speech should be “a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.” These legislators justified their proposed speech restrictions in the context of cyberbullying; there is always some hideous incident to use as the rationale for censoring speech.
Many public universities indoctrinate incoming freshmen to understand that the First Amendment has a unique meaning on campus. They are told that an individual’s right to speak is balanced against any other person’s right not to feel insulted. No wonder it is difficult to reorient students to the rough-and-tumble world of robust debate on matters of public policy when they emerge from the campus cocoon.
And although they are not currently targeting “hate speech,” the Senate and the House are going after corporate campaign speech and speech by telephonic device.
Speech restrictions undermine our very ability to sustain the social contract. In the rare event that they are needed, they must be fine-tuned to apply only to speech that threatens imminent harm. The public good requires that we rely on free speech itself — shame and moral opprobrium — to correct those who insist on saying what is rude or crude. Otherwise, as Hedegaard warns us, “ the prosecutor lies in wait.”
— Karen Lugo is co-director of the Center for Constitutional Jurisprudence and founder of the Libertas-West Project.