Criminalizing Free Speech Against Israel

This week, the France’s court of appeals upheld the criminal conviction of anti-Israel activists. The activists were convicted of inciting hate or discrimination based on the following nefarious behavior (per the Forward):

The individuals arrived at the supermarket wearing shirts emblazoned with the words: “Long live Palestine, boycott Israel.” They also handed out fliers that said that “buying Israeli products means legitimizing crimes in Gaza.”

In other words, they did what activists do. They promoted their particular cause (boycott or sanctions against Israel), in a way that was peaceful, and they were charged with a crime for it. This is possible because France has extensive laws against hate speech. Indeed, this actually isn’t the first time prosecutions like this have happened in France.

Now it sounds like these activists were only punished with a fine rather than imprisonment, which is a relief. But the principle at stake here remains the same. At bottom, these people were convicted for speech, for advocating a cause (boycott and sanctions against Israel) that happens to be taboo in polite circles. Regardless of how one feels about the politics of these activists, the question to ask here is whether peaceful speech should ever be a crime.

Glenn Greenwald at The Intercept has an excellent article out on this very question. He argues persuasively that this sort of activism should never be criminalized. And he also highlights the pervasive hypocrisy of France and the West on this subject, noting for instance that no one has called for the prosecution for all the people that advocated for sanctions against Iran or Russia over the year. Here’s the link:

https://theintercept.com/2015/10/27/criminalization-of-anti-israel-activism-escalates-this-time-in-the-land-of-the-charlie-hebdo-free-speech-march/

Banning and criminalizing hate speech is one of those things that could plausibly seem like a good idea until you try to figure out how to enforce it. Where’s the line between free speech and hate speech? And more importantly, how could we possibly decide what is hateful in an objective way? The answer is that we can’t. And so the decision of what is hateful be based on whatever the prevailing biases of the society (or the politicians) happen to be at the time.

Let’s consider applying the concept of hate speech in the American context to discover how futile this is. For instance, Trump’s recent rhetoric on Mexican immigrants being rapists or Syrian refugees being potential terrorists, could reasonably be viewed as hateful. What about Hillary Clinton bragging that “the Iranians” were her enemies in the Democratic debate? Or to go further back, how about that time when Secretary of State Madeleine Albright (under Bill Clinton) claimed that the deaths of 500,000 Iraqi children caused by US sanctions were “worth it”?

All of these things could plausibly be called hateful. A useful thought experiment to verify this is to just replace the targeted group with “Blacks” or “Jews” and reread any of the above statements. They probably sounded worse because we’re more sensitive to it. But there’s really no moral difference between discriminating against African-Americans or discriminating against Mexicans. They’re both reprehensible, and one is not less terrible than the other.

But deciding whether something is morally wrong and deciding whether it should be criminal ought to be separate questions. The French example offers a compelling reason why. Today, we are discussing a case of overtly political activism being labeled hate speech in France, while less than a year ago, a publication that openly mocked Islam being celebrated as free speech. That’s as arbitrary as it gets.

Laws against freedom of speech always get used against people who lack political power. In France today, that designation includes Palestinian activists. In Germany and some other European countries, it includes Holocaust deniers. In the US circa 1917, that included anti-war activists, and during the Cold War, it was mostly focused on communists. Clearly, some of the groups that get prosecuted under these rules are marginalized for good reason. But you can’t defend one group’s right to free speech without defending everyone’s right to speech, even the crazies’. And so we have to allow nativists, Islamophobes, anti-semites, and white supremacists to say what they want–not because we agree with it or approve of it, but because free speech is free speech. It doesn’t matter if you agree with it.

Endnotes:
1 – I should note that the above argument did not discuss the simpler rationale offered by the non-aggression axiom that is central to libertarian thinking. That argument would go something like this – speech itself does not cause harm to anyone unless it is a call or direct threat of violence. Thus, since it doesn’t infringe on anyone’s rights, it should be permitted. The more admittedly circuitous argument offered in the post above assumes and acknowledges that most people aren’t coming at this from the libertarian perspective.

2 – I didn’t include it in the main text of the post, but this oft-mentioned poem regarding the Holocaust addresses the same subject powerful. You may have heard it before, but it’s a good one to revisit. It’s called “First they came…”

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