What John Galliano Can Teach Americans about Free Speech

We are pleased to welcome back Professor Erik Bleich of Middlebury College with the following guest post on today’s conviction of Paris fashion designer John Galliano. Professor Bleich is the author of The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism, which has just been published by Oxford University Press.

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Today’s conviction in Paris of fashion designer John Galliano for “anti-Semitic insult” highlights a dilemma for citizens of liberal democracies like France and the United States. At what point do racist diatribes cross the line between protected and punishable speech?

Many Americans believe that the First Amendment shields public racist statements under all circumstances. But this is not true. Words that provoke immediate violence against their targets (like “there goes a white boy; go get him!”) and expressions that constitute threats (like burning a cross on a black family’s lawn to intimidate them) are not covered by the Constitution. Nor are many racist sentiments expressed in a workplace, a university, or on the radio or television.

Moreover, looking back at American history reveals an era where inflammatory statements were far less protected than they are today. In 1942, the Supreme Court forbade words that “inflict injury or tend to incite an immediate breach of the peace.” Ten years later, the Court confirmed the conviction of a Chicago man for distributing leaflets that decried the “the aggressions… rapes, robberies, knives, guns and marijuana of the negro.”

It was not until the 1960s and 1970s that the Court and society moved firmly toward a more speech-protective stance. Our commitment to tolerating rabid racist statements in public is therefore of relatively recent vintage.

In precisely the same era, European countries tilted in the opposite direction. For its part, France forbids not only racist insult, but also provocation to racial hatred. John Galliano is hardly the first prominent person in France to earn a conviction under these statutes. Far right political leader Jean-Marie Le Pen has been found guilty for asserting the “inequality of the races” and for framing immigrant integration as “a veritable invasion.” Actress and animal rights advocate Brigitte Bardot has also been successfully prosecuted five times under these laws. Her most recent conviction was for making public a 2006 letter to Nicolas Sarkozy in which she referred to Muslims as “this population that is destroying us.”

From an American perspective, it is difficult to fathom how Bardot’s statement could lead to a €15,000 fine. After all, she is simply expressing her opinion, no matter how odious. Americans are leery of giving the government the power to prosecute people for their beliefs, and are attached to the notion that restricting any controversial speech places all controversial speech at risk.

From a European perspective, however, Galliano’s anti-Semitic rants and Bardot’s diatribes against Muslims add nothing to the common good. They inflict pain, attack human dignity, and risk driving a wedge between segments of society. Punishing racist statements like these is thus wholly justifiable as an exception to their otherwise strong commitment to upholding free speech.

Since the 1960s, freedom of expression has become entrenched in our law and in our public consciousness to the point where it is unthinkable that John Galliano or Brigitte Bardot could be convicted for racist speech in the United States. The Supreme Court has turned away from the mid-century decisions that allowed restrictions on racist insult and provocation to racial hatred in the European manner.

But our own history shows that, like our trans-Atlantic neighbors, we once disdained inflammatory speech that added little to the marketplace of ideas and that risked generating violent reactions or aggravating racial divisions. While the French solution is no panacea, understanding the reasons behind it can help us rethink our own stance. We may lose more than we gain from protecting racist speech.

[Cross-posted at The Huffington Post.]

9 Responses to What John Galliano Can Teach Americans about Free Speech

  1. RobC September 8, 2011 at 2:42 pm #

    Unlike Professor Bleich, I hope that understanding the reasons behind our commitment to free speech can help the French to rethink their stance. They surely lose more than they gain from prosecuting the expression of disagreeable ideas.

    And who knows, maybe even our private universities will rethink their speech codes to once again allow academia to be places in which free expression is a paramount value?

  2. James Moore September 8, 2011 at 5:46 pm #

    “Many Americans believe that the First Amendment shields public racist statements under all circumstances. But this is not true.”

    You’re wrong. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    It’s right there: make no law. None. Not “make some laws, if a court decides that it likes to expand the power of government.”

    You can certainly argue (and you’re right) that courts have radically altered what the first amendment actually says, but the language is plain and strong. Make no law == make no law. That’s why Americans strongly believe that it does shield language that most of us think is absolutely vile.

    And personally, I’d put your position in the “disgusting/vile” bucket. But should the government be allowed to shut you down? Of course not. The government has no place making those decisions.

  3. Erik Bleich September 8, 2011 at 7:55 pm #

    James Moore, your position reflects a common misperception of the First Amendment. Until 1925 “Congress” meant just that–Congress, and not states or cities or other jurisdictions. Even after that time, Congress has certainly abridged the freedom of speech in cases of libel, slander, harassment, and all sorts of public speech deemed especially harmful. It also regulates obscenity, threats, state secrets, and even more! The question is not whether Congress regulates speech, but what kind and to what extent. Reasonable people can differ on where to draw the line. And most Europeans would see themselves as reasonable liberal democrats. They just differ with you because they think that racism has an especially bad historical track record, and that some pointed forms of it merit restrictions.

    RobC, picking up on this point, it’s not any old disagreeable idea that they restrict. The instances of racism have to be pretty egregious, and the penalties tend to be light (witness Galliano’s suspended sentence, which was only a modest fine in the first place). The point is to signal to society that there are limits, and that crossing those boundaries risks causing harm to individuals and to society, and deserves to be punished.

  4. RobC September 8, 2011 at 8:23 pm #

    Galliano had to pay only $23,000, and an additional $8,400 fine was suspended. He avoided any jail time, by the grace of the court. Those are the “light” penalties to which Professor Bleich adverts. I’m guessing that if society wanted to impose penalties on abortions but made them similarly “light,” Professor Bleich would be somewhat more concerned. In the case of free expression, the “harm” to individuals to which Professor Bleich refers is hurt feelings. Too bad that French parents don’t teach their children, “Bâtons et les pierres seront casser mes os, mais les noms ne seront jamais me blesser.”

    And let’s keep in mind that a country that criminalizes free expression is the kind of place that’s prone to restrict freedom in other ways, such as by banning headscarves in public schools. Zut alors!

  5. Lorenzo from Oz September 9, 2011 at 4:39 am #

    “Hate speech” laws are just modern blasphemy laws (as an historically literate lawyer points out here) and entitled to no more respect. If error has no rights, then that just means power is given to whoever gets to define “error”. Moreover, such laws are never operated even handedly. Neither in what counts as “hate speech” nor in which “hate speech” is prosecuted. Regarding the latter, everyone knows that, in jurisdictions with such laws, they are broken in various mosques every Friday and that such folk will rarely, if ever, be prosecuted.

    Common law notion of “incitement” provides a well-attested mechanism against speech that actually seeks to break legal protections. It is as far as one needs to go.

    Hate crimes are in a different category; first, because there are actual crimes involved. Secondly, because it is a criminal attempt to intimidate an entire category of people.

    Speaking as a gay man, I particularly dislike the way “hate speech” prosecutions give conservative Christians a warm sense of victimhood.

  6. James Moore September 9, 2011 at 12:25 pm #

    Erik, congress has certainly trampled all over the first amendment, both now and in the past. But that doesn’t mean that the common understanding of the 1st is wrong – it means that congress has blown it.

    When you’re writing, keep in mind that many of us would fine you $80k or so for this article that expresses views far outside the acceptable mainstream of a liberal democracy. Still sound like a good idea?

  7. Erik Bleich September 9, 2011 at 2:24 pm #

    I can see I am swimming upstream among the commentators on this thread. Still, I think it is simply wrong to assert that no speech should be restricted: we restrict speech all the time. For me, the better questions are what kind of speech, under what circumstances, and how vigorously should we restrict it? I don’t buy the argument that the world will end if we limit certain narrow forms of racist speech. Because many established liberal democracies do just that, and they are still established liberal democracies.

    Rob C, Galliano had to pay one franc in symbolic damages to the victims, and by virtue of losing, had to pay their legal expenses (quite a normal outcome, and not part of a state-imposed penalty). His sentence was 6,000 Euros, and was suspended; unless he commits another crime, he won’t pay it. 6,000 Euros is not a meaningless or trivial amount for many of us (certainly not in this economic environment), but for Galliano, it is nothing more than a few drops of ink in his checkbook.

    Lorenzo, I see why you make the parallel to blasphemy laws, but I don’t agree with it. Most incitement to racial hatred laws are not about preventing taboo words from being spoken or about protecting the dominant ideology or faith. They are also not about preventing offense. They are about limiting the ability of racists to drive a wedge between segments of society where there is a wedge already. Yes, we should use speech to counter racism at all times. But some times, we may also need the law. And I disagree with your analysis of hate crimes–those laws punish the crime, but they lay on an additional punishment for the racist motive. That can only be justified if you think racism can be very damaging to society. Which I do. I am just consistent with my logic in extending to the realm of speech the prevailing logic in the realm of hate crimes.

    James, we disagree. I think the common understanding of the First Amendment is wrong. And in terms of the fine, I don’t accept your deal. There is a huge difference between saying things that may be annoying to some overly-sensitive souls (and I don’t mean you) and stirring up longstanding and deep divisions among groups that may result in discrimination or violence.

    • James Moore September 9, 2011 at 7:35 pm #

      I don’t understand the argument about being more authoritarian in the past. Surely you can find a lot of things that the laws of the United States used to do that were, by our standards now, utterly repulsive. There are many things that we do better now than we did before.

      Looks like I was off by an order of magnitude – €6k is still large (and in the given case, you’re right that it’s probably about the same the budget for yesterday’s lunch), but not as large as my $80k. (But you’re wrong about legal fees – they’re absolutely part of the deal. Weird to suggest that they aren’t. Looser-pays systems are designed to frighten potential loosers.) But I deeply don’t understand why you think your argument makes sense. The world is filled with longstanding and deep divisions between groups. Frequently, they’re justified.

      But presumably my definition of what is longstanding and vile probably doesn’t overlap with the definitions given by, for example, the Pope. Or any random right-wing American fundamentalist. Or a respected Iranian Ayatollah. Should you pay attention to what is vile given the testimony of both a Turkish and an Armenian scholar? Where do you start? And why is racism special? Plenty of wedges in other areas too. This isn’t a slippery slope; it’s more like a vat of molten lava.

      I think the way we’ve chosen to deal with this is mostly correct: it’s not the place of government to make those distinctions.

  8. Wonks Anonymous September 9, 2011 at 4:53 pm #

    “Got get him” sounds punishable without the “hate speech” aspect, it is inciting people to commit a crime. And burning a cross on someone else’s lawn is an invasion of their property rights (if there were laws against burning a cross on your own lawn, that would be another story, and R.A.V vs City of Saint Paul overturned such laws).