The limits of freedom of expression

As a Franco-American with strong ties to both cultures, I’ve always struggled a bit to reconcile what “freedom of expression” means in my two countries. While I’m – of course – a firm believer in freedom of expression (part and parcel of being a liberal/progressive), I did not grow up in a country where politicians and opinion leaders could lash out terrible racist or homophobic epithets with no consequences. In the United States, however, I am consistently shocked and angered by some of the stories I come across. Like this:

A South Carolina lawmaker on Thursday called a Republican gubernatorial candidate of Indian descent a “raghead,” saying we have one in the White House, we don’t need one in the governor’s mansion.

Or, this, which is down right infuriating:

An Arizona elementary school mural featuring the faces of kids who attend the school has been the subject of constant daytime drive-by racist screaming, from adults, as well as a radio talk-show campaign (by an actual city councilman, who has an AM talk-radio show) to remove the black student’s face from the mural, and now the school principal has ordered the faces of the Latino and Black students pictured on the school wall to be repainted as light-skinned children.
(emphasis in the original article)

Neither of these stories are particularly different from the hundreds of other stories of racism and intolerance. I think, as Americans, we’ve become numb to this, in spite of the fact that it’s completely outrageous and unacceptable that in 2010, in a supposedly modern and free America, people are still being vilified for their race, creed or sexual orientation – without any consequences.

Freedom of expression is a thorny issue, with deep philosophical implications, and I won’t take attempt to take on this subject in this blog – partly because I have not really made up my mind about my own views as to what freedom of expression should look like.

What I do know, though, is that I tend to prefer the French approach. In France, a 1990 law was passed to criminalize the denial of crimes against humanity. Publications or public expressions of support for these crimes are punishable by fines and/or imprisonment. This meant that Holocaust deniers could no longer publicize their views, and, if they did, would be charged under this law. I’m sure many Americans recoil at the notion that people’s opinions cannot all be shared with the public – regardless of how offensive, outrageous and wrong they are. Another law, passed in 2004, “makes sexist or homophobic comments illegal and forbids job discrimination against homosexuals.”

In my mind, while these laws represent restrictions to freedom of expression, they are also the sign of a society that has the moral courage to distinguish between right and wrong. I also believe these laws – while they do curb people’s individual freedom of expression – actually promote another type of freedom: that of the individual not to be discriminated against, belittled or victimized by bigots. I’ve always marveled at the stories out of the United States where neo-Nazis are prancing around denying the Holocaust, or talk-show radio hosts spewing their racist, intolerant venom. I don’t see what is so “free” about that.

In fact, just yesterday, French immigration minister Brice Hortefeux – well-known for his dislike of immigrants – was fined $900 “private insults of a racial nature.” While many in France are calling for his resignation, Hortefeux says he will appeal the decision. The New York Times recaps the incident which led to the fine:

The verdict comes nine months after Mr. Hortefeux was recorded on camera at an event in southwestern France on Sept. 5 making what to many sounded like anti-Arab remarks. The video, which was first posted on the Web site of Le Monde, shows the minister posing for a photo with a young party member of Arab origin when a woman in the crowd can be heard saying:

“Amine is a Catholic. He eats pork and drinks beer.”

“Ah, but that doesn’t work at all, then he does not fit the prototype at all,” Mr. Hortefeux is heard replying to general laughter.

Another female voice shouts: “He’s our little Arab.”

Mr. Hortefeux answers: “All the better. There always has to be one. When there’s one, it’s O.K. It’s when there are a lot of them that there are problems.”

Seriously? Remember, this man is the Minister of Immigration. For French speakers, you can watch the video here.

I think it’s a real stretch to say freedom of expression is endangered in France, even though some members of the press who have clashed with Sarkozy and his administration might beg to differ. I see these laws, which protect individuals and groups from libel and discrimination, as necessary tools to fight against intolerance. When I read stories like the one about the Arizona school mural, I find it hard to believe that Americans continue to defend unbridled “freedom” of expression…

4 thoughts on “The limits of freedom of expression

  1. ‘Freedom of expression’ in the current American social climate has become increasingly politicized, and in many circumstances, has regressed. Often hate, and prejudice are being dressed up in and hidden behind a cloak of ‘freedom of expression.’

    The limits of Freedom of Expression must be when it is used to discriminate or otherwise harm others. In order to be true, freedoms must be protected from and held separate to the political discourse of a people.

  2. Penelope,

    Interesting post, I rarely hear this perspective on freedom of expression. I understand where you are coming from however we do have laws in the US that protect against hate crimes and hate speech. I’m not familiar with the specifics but do know they exist. Also many organizations and universities have speech codes that regulate speech that can border on harassment. I don’t believe stricter policies are needed.

  3. Few things are as offensive as intolerance; but intolerance of offense can itself be offensive.

    I understand that shock tactics, offensive slurs, and freedom without accountability can be a concern in our democracy but it is also the freedom to be angry, to react to a status quo, to engage and to excite that has been a core foundation to our demos’ education.

    To lose our freedom to offend, as pleasant as the prospect may be, would be equal to losing our freedom to engage each other beyond our existing social norms. Discussing genetic engineering, civil or women rights, were, in an all too close past, not only considered dangerous but highly offensive towards agreed principles of morality, standards of behavior or even past scientific axioms.

    It is our engagement in this process – occasionally through passionate calls, often in fumbled words, and unfortunately all too often with direct insults – that we have gained traction in issues requiring attention. As offensive as racist discourse is, it is also a fulcrum over which our society can engage issues of race, inequalities that might arise from it, and the problems that this very discourse is seeking to over ride.

    In effect, my concern would be less with the freedom of others to express what they may but more with my own freedom to be offended with what they may say. Unfortunately, the two have not always been linked together over our history. Indeed, to allow one without the other is to enshrine one opinion in law and to relegate the other to sedition. In reality, however, offense and engagement can not be disentangled, they are both intimate with each other and drive us to understand the reasons for which we reach our public consensus.

    Taking Hortefeux’ statements as an example: are his comments offensive? Yes if you feel concerned by the subject – but then again how else can we engage them? By avoiding racial signifiers from the public debate entirely? I don’t know if you are aware but in France, due to the attachment to civic equality under the law, it is formally illegal for French national authorities to issue statistics covering racial inequity: essentially it is illegal for INSEE or other bodies to state that such or such race is unfavored whether economically, socially, or otherwise. Simply put, the liberty of expression, restrained over statistical measures, inhibits our liberty of being offended (but potentially also informed). This situation is neither positive nor constructive in my opinion.

    Now is it ideal that we should resort to public outrage and disparaging comments? That we need to then re-allocate resources towards being angry rather than towards ‘fixing’ issues? Perhaps, but so is the risk of being complacent and of ignoring public sentiment. Hortefeux’ comments, as inflammatory as they may be, still give us an avenue to react and engage a debate that is still better covered by a center-right democratic party than by more fringe and extreme groups. Indeed, remaining politically correct on this vector can aggravate disconnections such as that faced in ’02, where the French presidential run-off was suddenly faced by even more extreme opinions.

    As to the comment that you made earlier, that the French have tried to engage their legal process in limiting outcomes, I can see where and how your preferences are shaped – however, I wouldn’t agree that such powers should extend to the point of censure. Instead, if we can maintain our legal process sufficiently engaged to keep us accountable then certainly we are better equipped, as a society, to confront our own excesses, rather than deluding ourselves that outright censure might ‘eliminate’ a particular stream of thought.

    As for how this accountability should be managed – whether a pecuniary penalty is always enough – I believe we should be careful in getting too emotional. Justice and retribution are easy to tout for but they do not always resolve, as if by magic, an underlying ‘malaise’. Perhaps the best solution still is to ensure that does who’s freedom to express offense towards others can be equally met by a freedom to react to such offense. But I suppose at this point, my reply becomes circular.

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