Jacob McHangama: The Sordid Origin of Hate-Speech Laws

Jacob Mchangama is a Danish lawyer whose article "The sordid origin of hate-speech laws," appeared in the December-January 2011 issue of Policy Review (Hoover Institution). I picked it up, being fairly certain that he would trace the hate-speech laws that now dominate European law back to communist efforts to limit freedom of speech during the drafting of the Universal Declaration of Human Rights, which was published in 1948 under the aegis of Eleanor Roosevelt at the UN.

McHangama does exactly that, but is quite penetrating in his discussion of the history of the hate-speech coda that various communist countries such as Russia, Yugoslavia, and China attempted to add to the UDHR document, without success. McHangama writes, "led by the US and UK, the vast majority of western democracies, albeit with differences in emphasis, sought to guarantee a wide protection of freedom of expression and in particular to avoid any explicit obligation upon states to restrict this right" (49).

"Incitement to violence," was put forward by China as something worth banning, especially with the memory of racial violence and genocidal ideation that occurred in areas under Nazi administration. But it never quite cleared the committee, and the UDHR continued to protect freedom of expression. UDHR is not a legally binding contract but rather a kind of agreement on principles but there is no policing.

On the other hand, two new documents are policed by the EU. One is the International Covenant on Civil and Political Rights and the other is called The International Convention for the Elimination of all Racial Discrimination, which is legally binding and has been ratified by 167 states. "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

This sentence (article 20) is a pickle. The US is not a signatory to this document as the US has backed our own first amendment, and has gotten increasingly on the side of freedom (outside of US campuses, which have illegally and unconstitutionally attempted to ban hate-speech). The problem with the ban on any form of discriminatory speech is that it can and has been used to close down freedom of discussion and the right to speak toward some elements of the population. So there is a lot of discussion. During the Cold War, Poland was afraid "that freedom of expression could be abused and 'contribute decisively to the elimination of all freedoms and rights'" (50). So instead they pounded their own population into silence, which proves only that any principle can be abused.

Against this, the United States, most Anglophone countries, and the five Nordic countries, backed freedom of speech.

The silencing of dissent, which was routinely practiced in communist countries, is now also routinely practiced in many Muslim countries. The attempted silencing of the Danish cartoonists was actually backed by European laws, and yet, there were other laws that seemed to allow them to publish. Europe hangs in the balance.

The Organization of Islamic Cooperation has attempted to use the UN to ram through speech codes that would be universal, and which state, that "everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah" (cited on p. 55). In other words, the entire UN would be held accountable to Shar'iah law, and those who do not hold to this would be accountable for blasphemy.

With Christian and Jewish and Islamic and other groups unable to criticize one another (any statement that insults the religious feelings of others would be banned) one wonders what wouldn't count as a religious feeling, and how all of these various might counteract one another and instead of lead to a global discussion might lead instead to a global silence in which like-minded people were reduced to whispering in corridors. Communists and feminists and fornicaters and global-warming fanatics would and could use the hate-speech codes to block any criticism of their beliefs as insulting to their feelings.

McHangama rightly objects to the closing of free speech throughout Europe. He does this partially on the basis of where these ideas have been (communist dictatorships). He also objects to the way in which Islamics have jumped on these ideas in an attempt to silence the free world's sense of repugnance toward Muslim doctrines of intolerance toward women, and secularists. One need only think of the shooting of dissenters in Iran or the way in which women were not permitted to have an education under the Taliban to think of the ways in which silencing has been practiced within Islam.

Meanwhile, on a related note, I'm also reading JS Mill's On Liberty (originally published 1859; Barnes and Noble edition, 2004). Mill is no longer a well-known philosopher having been eclipsed by postmodernism, communist-Marxist thought, and Anglo-American thinkers such as Peter Singer and Martha Nussbaum (who both have their Marxist side). Still, Mill deserves to be revived, insofar as he is a very strong advocate of freedom of inquiry. Mill was a utilitarian who believed in the greatest happiness for the greatest number. Mill writes,

"If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind" (17).

Mill writes, "All silencing of discussion is an assumption of infallibility" (17).