Hate-Speech Laws Have Never Worked

By David Harsanyi

Sunday, October 10, 2021

 

Anti-Semitism has exploded in Europe. Not only in Eastern and Central Europe, where few Jews still reside, but in allegedly enlightened liberal democracies of Western Europe, where violent attacks against Jews — often linked to “anti-Zionism” — aren’t merely rampant, they often go unpunished.

 

If you only read establishment media, you might be under the impression that this trend is primarily the work of angry authoritarian ethnonationalists. And certainly, they’re part of the problem. But, as one EU study found, among the most serious incidents of anti-Semitic harassment in the EU, 31 percent include someone the victim did not know, and 30 percent were perpetrated by someone with extremist Muslim views; 21 percent were by someone who held left-wing political views, and only 13 percent were by someone with known right-wing views. A few years ago, France, which has the largest Jewish community in Europe, was impelled to send 10,000 troops across the country to protect hundreds of Jewish sites. French soldiers patrol streets in places such as Sarcelles to protect Jews from rampant “anti-Zionist” Islamic violence.

 

I’m not sure how many more catastrophic events European Jews have to experience before abandoning that wretched place. But rather than beefing up societal efforts to assimilate newcomers and proselytizing Western liberal values, the EU’s executive branch has unveiled a new strategy to fight anti-Semitism by continuing to fixate on censorship. The EU will set up a network of “trusted flaggers” who will work with Jewish organizations to find and remove “illegal online hate speech.”

 

As I detail in my forthcoming book, speech codes in Europe are already illiberal, arbitrarily enforced, and often used to undermine legitimate political debate. In places such as Germany, citizens not only face huge fines for breaking hate-speech laws, but the police can raid homes and arrest people for the crime of sharing puerile political cartoons.

 

What good has it done? In 2008 Germany pressured the European Union to pass regulations “fighting racism and xenophobia,” which every EU member nation has since incorporated into its national legislation. Hate crimes have only increased. Europe remains, by any measure, a far less tolerant place than the United States, where speech is basically unrestricted.

 

Even if, for the sake of argument, we (and by “we,” I exclude the numerous left-wing intellectuals who champion censorship) dropped principled notions about neutrally protecting free expression, the fact is that hate-speech legislation fails to accomplish the thing its champions purport it does. It always has.

 

One could understand the inclination of post-war Germany or Austria to enact strict laws banning Nazi symbols and Holocaust denial — Volksverhetzung — in their efforts to stem fascist movements from growing and destabilizing governments and societal order. But not even they had any evidence that such laws would matter.

 

In Europe, hate-speech laws also existed in the 1930s and failed to stem the tide of European fascism — in fact, in some marginal ways it may have buttressed its rise. Nazis in the Weimar Republic were constantly being prosecuted under existing speech codes, giving them more political ammunition. When Hitler was banned from speaking in the early ’20s, it only made him more popular. Insulting traditional religious communities — including Jews — came with the threat of three years in prison. It didn’t change anything.

 

As Flemming Rose, the editor of Jyllands-Posten, the Danish newspaper that bravely published the Muhammad cartoons in defense of free expression, pointed out in The New Yorker in 2015:

 

Researching my book, I looked into what actually happened in the Weimar Republic. I found that, contrary to what most people think, Weimar Germany did have hate-speech laws, and they were applied quite frequently. The assertion that Nazi propaganda played a significant role in mobilizing anti-Jewish sentiment is, of course, irrefutable. But to claim that the Holocaust could have been prevented if only anti-Semitic speech and Nazi propaganda had been banned has little basis in reality. Leading Nazis such as Joseph Goebbels, Theodor Fritsch, and Julius Streicher were all prosecuted for anti-Semitic speech. Streicher served two prison sentences. Rather than deterring the Nazis and countering anti-Semitism, the many court cases served as effective public-relations machinery, affording Streicher the kind of attention he would never have found in a climate of a free and open debate. In the years from 1923 to 1933, Der Stürmer [Streicher’s newspaper] was either confiscated or editors taken to court on no fewer than thirty-six occasions. The more charges Streicher faced, the greater became the admiration of his supporters. The courts became an important platform for Streicher’s campaign against the Jews.

 

Then, as today, speech restrictions undermine debate and make martyrs of the worst elements of society. And if the only way to stamp out illiberalism is through authoritarian and illiberal means, maybe it’s not the speech that’s the problem but the underlying societal values.