July 14, 2016 (ThePublicDiscourse) — Immediately following last year’s same-sex marriage ruling, Obergefell v. Hodges, Pennsylvania news site PennLive published an editorial explaining that “As a result of Friday’s ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage.” Such opposition was equated with “homophobia,” which in turn was equated with racism. All of which made the decision “Pretty Simple.” After a burst of public outcry the paper revised its policy and stated that letters to the editor on the issue of same-sex marriage would be allowed “for a limited time.”
But imagine a world where censorship isn’t self-imposed, as in the case of PennLive, but state-imposed under threat of criminal sanction—where opposition to the prevailing political and cultural orthodoxy doesn’t just mean an unprinted letter, it means police officers at the door. We might imagine this happening in faraway dictatorships. But in reality, such scenes are becoming increasingly common in Europe. Catholic bishops are the subjects of police investigation, cartoons can be criminal, and private debates have led to prosecutions.
Europe has a free speech problem. It should serve as a warning to the United States.
The Rise of Europe’s Speech Laws
To understand the current situation in Europe, we have to look back to the middle of the last century. After the Second World War, the international community gathered together and launched the United Nations. The member states of this newly formed body then proceeded to draft and adopt the non-binding yet foundational Universal Declaration of Human Rights (1948) and a series of binding human rights treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination (1966) and the International Covenant on Civil and Political Rights (1966).
During the drafting of these three documents, the issue of free speech was furiously debated. Two opposing views emerged. On the one hand, there were the Western liberal democracies—the United States, Canada, and Western Europe—all of which argued for strong free speech protections. US delegate Eleanor Roosevelt, for example, argued that restrictions on speech were not only unnecessary but also harmful, pointing out that “any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequently prohibited.” And UK delegate Lady Gaitskell argued that freedom of speech is “the foundation-stone on which many of the other human rights were built.”
On the other hand, the Soviet Union and the communist-led nations of Europe all argued for greater restrictions on speech. As Soviet delegate Alexander Bogomolov explained in 1947, “It could not be said that to forbid the advocacy of racial, national or religious hatred constituted a violation to the freedom of the press or of free speech . . . Freedom of the press and free speech could not serve as a pretext for propagating views which poisoned public opinion.” Similarly, the Czechoslovakian representative “felt that it was no proof of democracy that movements directed towards hatred and discrimination were allowed to exist.”
The international human rights treaties represent the starkly different positions of the drafters. There is a strong emphasis on freedom of speech within the documents, but the communist-led nations successfully inserted several far-reaching speech restrictions, including prohibitions on the advocacy of “hatred.” And although the totalitarian regimes that pushed for such restrictions have long since collapsed, the provisions that they forced through remain. Tragically, the European nations that once defended freedom of speech at the international level and voted against these restrictions have now enacted the national “hate speech” laws that were called for by these treaties.
The US, on the other hand, has done no such thing. On signing the International Convention on the Elimination of All Forms of Racial Discrimination, the US clarified that “the Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation . . . to restrict those rights.” Similarly, on signing the International Covenant on Civil and Political Rights, the US inserted a reservation stating that the treaty “does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.”
The US has defended its constitutional free speech protections both at the international level and domestically. Europe, however, has gone in the opposite direction.
The Spread of Europe’s Speech Laws
Following the Soviet-inspired speech restrictions adopted on the international stage, the nations of Europe were quick to pass “hate speech” legislation at a national level and have been expanding the reach of these laws ever since.
Since the signing of these international treaties half a century ago, the proliferation of Europe’s speech laws has continued with frightening speed. First it was accepted that racist speech was criminal, then speech against religion, and in recent times, speech that is “homophobic” or “transphobic.” In some countries, speech that is considered sexist has also been outlawed. After it was accepted that criminalizing speech was a desirable way to produce better citizens, finding a stopping point has proven almost impossible and, for those in power, utterly undesirable.
Today, hundreds of criminal speech laws exist in Europe. In Austria, for example, “insulting or belittling with the intent to violate the human dignity of others” carries a two-year prison sentence. Insult is also a criminal offence in Germany, but with an added twist—the criminal code confirms that “proof of truth of the asserted or disseminated fact shall not exclude punishment.” In Greece, “insulting God in public” carries a two-year prison sentence, and in Denmark, insulting the flag of the United Nations carries the same sentence. In Hungary, the state itself can be the victim of “hate speech”: inciting hatred against the Hungarian nation carries a three-year prison sentence.
Similar laws exist all over Europe. These laws are vigorously used—not against everyone all the time, of course, because policing an entire continent’s speech would prove impossible, especially in the digital age. Instead, such laws are inevitably turned towards people who do not share the state’s views on certain politically charged topics. In twenty-first-century Europe, discussions on immigration and Islam are high-risk. And as the following examples make clear, voicing the belief that marriage is between one man and one woman or that sex should be reserved for such a marriage is becoming an increasingly dangerous activity.
The Abuse of Europe’s Speech Laws
In the last decade, at least five Catholic bishops have been investigated by the police for mentioning homosexuality during homilies or newspaper interviews.
In 2007, André-Mutien Léonard, then the Bishop of Namur (and now Belgium’s Archbishop) said in a newspaper interview that marriage is “by definition, a stable union between a man and a woman” and that homosexuality is “abnormal.” Léonard was prosecuted by the Belgian authorities for “stigmatizing” homosexuals but acquitted after the courts ruled that the comments were not severe enough to warrant criminal conviction.
In 2012, Bishop Juan Antonio Reig Plà preached a Good Friday homily in Madrid, Spain, that was televised by the state broadcaster and mentioned homosexuality. A number of activist groups created a media storm and filedcriminal complaints with Spain’s General Prosecutor and the Prosecutor of Madrid, alleging that the bishop had “incited discrimination and hate.”
In 2014, a Spanish prosecutor agreed to investigate Cardinal Fernando Sebastian Aguilar after he called homosexuality a “defective way of expressing sexuality.” The lobby group that called for the prosecution claimed that the Cardinal’s words “clearly incite hate and discrimination” and also argued that “Spain is a modern country and a secular one, and these types of declarations from the church have to be punished.” The investigation was quietly dropped.
And in 2015, a criminal complaint was filed against Bishop Vitus Huonder, the Catholic bishop in the city of Chur, Switzerland, for quoting Old Testament Bible passages during a lecture on marriage and the family. According to a media release by Pink Cross, an umbrella group for Swiss LGBT lobby groups, the bishop was “inciting people to crime or violence.” The crime carries a three-year prison sentence, but, at the time of writing, no action has been taken.
The police are nondenominational in their application of “hate speech” laws, and Britain’s evangelical street preachers are also regular targets. In 2008, Anthony Rollins was arrested for preaching that homosexual conduct is morally wrong after a passerby heard his comments and called the police. Rollins was held in a police cell for over three hours before being released. In 2010, Dale McAlpine was arrested after telling a police officer that “the bible says homosexuality is a sin.” McAlpine was taken away in a riot van, and—after seven hours in a police cell—he was charged with using “threatening, abusive or insulting words or behaviour likely to cause harassment, alarm or distress.” A hidden camera caught the entire incident on video, and all charges were dropped.
In 2011, the police accused fifty-seven-year-old John Craven of a criminal offence after two teenage boys approached him and asked what he thought of homosexuality. Craven quoted the Bible and said that “whilst God hates sin, He loves the sinner.” The teenagers told police they felt insulted by this answer, and Craven was arrested. He was held in custody for over nineteen hours before eventually being released without charge.
In 2014, Tony Miano was arrested and held overnight in a police cell for publicly preaching about “sexual sin,” including “adultery, promiscuity, and homosexual practice.” Charges were eventually dropped after video footage revealed that the accusations against Miano were false.
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The vast majority of Europe’s “hate speech” cases go nowhere. In fact, in the examples above, Rollins, McAlpine, and Craven all successfully sued the police for wrongful arrest. Some may suggest, therefore, that there is little to worry about. Free speech wins in the end. But such a response misses the point. The grave danger in Europe’s hate speech laws lies not in successful convictions but in the culture of censorship that the laws create: a culture where the phrase “you can’t say that” is commonplace, where citizens do not know the line between allowed and not allowed, where everyone feels he or she is walking on eggshells.
Criminal law plays a powerful role in signalling the difference between acceptable and unacceptable behaviour. Thus, it is unsurprising that a continent that has embraced criminal censorship has also seen a culture of censorship arise. From a European standpoint, the US is remarkable. Yet despite having the legal protections for freedom of speech that Europe lacks, a culture of censorship is nevertheless emerging in the US as well.
Free Speech in America
After adopting the First Amendment and all the protections it affords, after leading the efforts to defend free speech on the international stage as foundational treaties were drafted, after placing strong reservations on those treaties to protect free speech in the US, and after having developed a robust free speech jurisprudence during the course of the twentieth century, the US now finds itself embracing the censorship mentality of Europe.
On college campuses, future leaders are willingly embracing an array of censorship measures including “trigger warnings,” “speech codes,” “free speech zones,” “safe spaces,” and “no platforming.” Many of these specifically target those who believe in traditional marriage. Leading academics are calling for “hate speech” regulations that would circumvent the First Amendment. Employees are hounded out of the workplace for privately discussing their views on marriage and sexuality. And as we have seen, the press appears willing to censor itself without any government mandate.
Europe has willingly gone down the path of censorship, and there now appears to be very little stopping point in sight. As two judges of the European Court of Human Rights recently opined in a case involving “anti-LGBT” leaflets, “extremist opinions can bring much more harm than restrictions on freedom of expression.” This is Europe’s mantra, and it will be hard to overcome.
The US has not followed the same legal path, but it appears to be adopting a similar mentality. If Americans do not heed the warnings of Europe, how long will it be until the law follows suit and letters to the editor are not only banned but also reported to the police?
Paul Coleman is Deputy Director and Senior Counsel for ADF International and author of Censored: How European “Hate Speech” Laws are Threatening Freedom of Speech. Second edition released June 15, 2016. Reprinted with permission from The Witherspoon Institute.