As Pakistan assesses the carnage of the violent protests that were triggered by an Islamophobic movie produced in the United States, many have asserted that the moviemakers are protected by the freedom of speech. Judicial perspectives from the U.S. concerning free speech enjoy dogmatic support across the globe, but its followers should consider that that international law encourages prohibitions on hate speech as a valid method to protect minority groups and establish peace in a country.
However, there are two major reasons why the U.S. has not followed suit from its international allies, who prosecute individuals for speech that would be considered constitutionally protected by American standards. First, American jurisprudence protecting free speech is based on a laissez-faire economic model which assigns ultimate value to the maintenance of a free market of ideas and judges are presumptively repulsed by the government setting parameters on that market. Second, the U.S. protection for free speech is dictated by the nation’s negative rights constitution, which has proven cumbersome when confronting the rise of hateful rhetoric against certain minority groups.
MARKETPLACE OF IDEAS
Justice Holmes, who rightfully remains a towering figure in law, first introduced the idea that the government should not involve itself in censorship because it was better to leave the “marketplace of ideas” unfettered. He argued that “the best test of truth is the power of thought to get itself accepted in the competition of the market,” meaning that people should be given the option to choose whether or not to support any idea.
In order to allow them to decide fairly, the marketplace of ideas gives penultimate value to freedom of speech of any kind, including hateful speech. In a functioning marketplace, the government would not need to censor hateful speech, because the people themselves would decide not to listen to the hateful speaker, and he or she would be relegated to a punishment worse than imprisonment – anonymity.
As such, the Supreme Court has erred on the side of approving hate speech rather that allowing the government to regulate speech. The slippery slope argument has been used by many American judges, asserting that if the government is given an inch to censor free speech, they will take a mile. Justice Douglas stated that the government had to respect the marketplace of ideas, “for the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”
This seems to echo the belief in economics that free market theorists like Milton Friedman support: he wrote that “underlying most arguments against the free market is a lack of belief in freedom itself.” These individuals cannot imagine a government that regulates business or speech without attacking the basic freedom underlying it.
Yet, countries around the world have rejected an absolute belief in the free market, especially after the recent economic meltdown which some say was caused by the failure of governments to effectively regulate the market. In many ways, we are also seeing a global legal meltdown concerning freedom of speech and how it relates to the protection of minority groups.
The Pew Institute has reported that hate speech and religious incitement has increased around the world, and they point to growing examples of Islamophobia and anti-Semitism in Western countries. This is alarming when one considers the opinion of the Council of Europe which stated that hate speech against vulnerable groups does double damage by reinforcing stereotypical prejudices and silencing minority members.
The U.S. has rigidly stood by its jurisprudence, recognizing many anti-Semitic and anti-Islamic expressions as valid exercises of the First Amendment in the free market of ideas. However, Europe has dealt with the problem by forgoing the laissez-fair approach to free speech and prohibiting certain forms of hate speech.
One can compare the case of neo-Nazis’ right to free speech in the U.S. and Europe. In the Skokie affair, the U.S. Supreme Court recognized that neo-Nazis have the right to display their swastikas and parade in a city despite the damage it might cause to the community. While in Jewish Community of Oslo et al. v. Norway, a committee ruled that the display of Nazi regalia and advocating in favor of the Nazis publically constituted hate speech and could be prosecuted.
Before Pakistanis laud the U.S. for protecting free speech, one should consider the way in which the failure to prohibit hate speech affects Pakistan. When news anchors or neighborhood imams deride Shias, Ahmedis, Hindu’s or Christians, they are not punished by the state, while their targets are left to languish in greater social alienation. Their speech offers nothing beneficial to the society, yet it would be protected by American courts, so long as it was not likely to incite imminent lawless action.
The second element that affects American free speech jurisprudence is the basic structure of the constitution. If one looks to the Bill of Rights, it is a list of things the government cannot do: “the government shall not infringe upon” freedom of speech, religion. This is emblematic of a negative rights constitutional order that can be traced to the founders of America who believed that the basic function of government was to respect the autonomy of citizens.
One can distinguish this from the system in other countries that is dictated by a positive rights Constitution, which requires the government to “ensure” rights. As such, man y positive rights constitutions enshrine civil liberties in two parts: the first recognizes the individual’s right, and the second establishes the individuals’ duty not to abuse that right. Thus, there is a marked difference in between the two legal regimes; one envisions each citizen as a secluded island unto themselves that must be left alone, while the other assumes that each individual is a member of their society at large.
Under the positive perspective, the government has greater authority and obligation to limit certain individual rights for the sake of the community. This is embodied in international law through the International Convention on Civil and Political Rights (ICCPR), which has been signed by the U.S. and Pakistan. While the ICCPR recognizes free speech, it obligates signatory nations to prohibit speech “advocating for religious or ethnic hatred.”
The U.S. has not satisfied this obligation because its negative rights regime dictates that the indivudal owes no duty to their community to refrain from propagating hateful ideas. In contradistinction, positive rights proponents would assert that while an individual has a right to free speech, they owe a duty not to violate harmonious relations amongst their society or abuse minorities. In a case decided by the Swedish Supreme Court concerning a pastor’s speech deriding other religions, the Court stated that citizens have a duty to avoid making “statements that are unjustifiably insulting to others and constitute attacks on their rights.”
American judges would rebuke such a conclusion, asserting that private individuals have an absolute right to say whatever they wish regardless of its offensive quality, and the government has no right to enforce a duty upon them.
When one looks to the trends in developing countries, most have realized that human progress does not come in the form of isolation but through cooperation and active involvement in one’s community. This is evidenced in economics through social welfare programs that interfere with the free market to establish a safety net for the most disadvantaged in the society. Likewise, outside the U.S., legal frameworks have also reflected the need for governments to “interfere with the free market of ideas” when speech is meant to attack socially vulnerable groups or propagate religious or racial discord.
While the U.S. allows for hate speech as a necessary evil to free speech, it also allows for this right through its overall negative rights constitution. This differs from international conventions and other constitutions which recognize the right to free speech but attach a duty to exercise the right respectfully of the community. Therefore, there is reason for developing nations like Pakistan to look beyond the U.S. for legal guidance in developing their freedom of speech protections.
Waris Husain, JD
Writer, Dawn News Group / The Friday Times
Director on the Board, Americans for Democracy and Justice in Pakistan
LL.M. in International Law Candidate, Washington College of Law
NOTE:This is a cross post.