What Are Human Rights? (46): Equal Rights, Ctd.

The idea that human rights are equal rights is trivial at first sight. However, it becomes problematic after some reflection, and only regains its persuasiveness after even further reflection. When you think about it, equal rights for everyone is a strange idea. Why should all people have the same rights? Why should a preacher of violence and hate have the same right to speak freely as the world’s best poet? Why should a religion that oppresses women have the same right to exist as a religion that loves peace and equality? Why should people who haven’t finished primary school have the same right to vote as experts in government matters?

Agreed, they are all human beings and human rights are the rights of human beings, but that’s a tautology, not an argument. A somewhat more promising foundation for the notion of equal rights goes like this: one can argue that people need human rights in order to realize certain of their most fundamental and commonly shared values. If that is true, then rights should be equal rights.

Most people value the ability to express themselves, to belong to groups, to share a common identity (e.g. a religious one), to govern their own affairs, to enjoy peace and prosperity etc. And we know that they need human rights to realize these (and other) values. Agreed, some of us may not want any of this, but then they can waive their rights. And only THEY can. People should decide for themselves whether they need rights and need them equally; others shouldn’t decide for them. That is probably the only morally sound way to treat people.

We can also justify equality of rights on the following grounds: we don’t want rights just for ourselves and for the things we value for ourselves; we also want other people to have rights and to have them equally – or at least we should want this if we are to reason coherently. This is not a requirement of morality or altruism – although it can be, obviously – but simply one of logic and coherence. The right to express myself, to belong, to live in peace and prosperity, to vote etc. makes no sense if I’m the only one to have those rights. Even if others use their expression or their votes or whatever in a stupid way, they should have the right to do so – as long as this use doesn’t imply rights violations of course. Hence, equality of rights is a logical requirement in the system of rights.

More posts in this series are here.

Hate (8): Tolerance and Hate Speech

Jeremy Waldron claims that tolerance is more than merely the absence of violent assault on people who have adopted beliefs and practices we don’t like, and more than simply abstaining from persecution and legal sanction. He says that tolerance also implies the absence of hate speech and a legal prohibition of hate speech. Members of minority groups whose beliefs and practices are strongly disapproved of by the rest of society, have a right to go about their lives without the threat of constant hatred, vilification, insult and humiliation. They have a right to visit the shops and restaurants they want to visit, and to generally interact with others without being treated as pariahs.

And, indeed, that sounds quite reasonable. People undoubtedly have and should have such rights. But others have rights as well: hate mongers have a right to free speech, and racist shop keepers and restaurant owners have a right to ban whoever they want from their private property, under certain circumstances.

When the rights of the haters and the rights of despised minorities come into conflict, the different rights have to be balanced. I argued before that the right of private property of racists, or the freedom of association of prejudiced groups wanting to exclude homosexuals for example, should no longer be protected when these racists and bigots have become so numerous and authoritative that the objects of their racism or bigotry no longer have any alternative options and risk having their own rights violated. In the Jim Crow era, for example, it was very difficult for blacks to move around, find decent housing etc. because there were so many transport companies and landowners discriminating against them that their options were seriously diminished. Hence their rights were violated, and violated to such a degree that limitations on the rights of their tormentors were justified.

Similarly, in our current example, hate speech should only be banned and the right to free speech of hate mongers should only be limited when there’s an impact on the rights of their targets. Claiming, as Waldron seems to do, that a tolerant society generally requires such bans and limits will not do. That’s just not enough as a justification. For example, writing blood libel on an obscure blog that nobody reads should probably not be prohibited. On the other hand, burning crosses in the front yards of black people and forcing them to move elsewhere is a violation of their right to freely choose their residence. The same is true if people dare not walk the streets because of the risk of being constantly cursed at. These two cases of expressions of hate speech can and should be banned because they result in rights violations. Other expressions of hate speech should be protected. A general claim that tolerance requires not just constraints on coercion and violent persecution but also a general respect for people’s dignity and a social atmosphere free of hatred, insult and defamation, goes too far. It would be nice if the world was free of hate and if respect for dignity was the normal attitude, but there’s no right to such a world. Nor should there be.

If we were to adopt such a right, we’d run the risk of terminating debate altogether. If tolerance includes a general ban on hate speech it’s likely that it will also imply banning vehement discussion of other people’s supposed errors. You don’t need to engage in hate speech in order to have a vehement and lively discussion and criticism of others, but a lot of such criticism can be readily understood and perceived by its targets as an expression of hate and an insult to dignity. These targets can then use the power of law to shut down the debate, and that’s not something we want. Ideally, specific instances of speech should not be judged as inadmissible instances of hate speech and proper objects of legal sanction simply on the basis of the feelings or perceptions of the targets, but only on the basis of the objective consequences for the rights of the targets. Tolerance that includes a ban on all hate speech is a tolerance that in the end may silence us all.

More on tolerance, hate speech, defamation and insults. More posts in this series are here.

The Ethics of Human Rights (45): Is There A Right To Do Wrong?

Absolutely, there is. People have a right to vote for incompetent politicians; to express hatred; to organize hate groups; to insult and mock people; to burn books etc. All of these things are wrong in most plausible conceptions of morality, and yet they are part and parcel of human rights, and should be, to the extent that they don’t cause rights violations. Does this make human rights wrong? Objectionable? No it doesn’t, at least not necessarily. Human rights are objectionable if they have bad consequences, but only bad consequences in the sense of rights violations. Hence human rights are objectionable if they produce violations of other rights or the rights of others.

Some of the examples I just gave of the use of human rights may result in bad consequences. Hate speech can harm people’s rights. However, it’s often extremely difficult to measure the consequences of rights. For example, bad consequences can produce good consequences: e.g. allowing people to produce hate speech can convince a lot of people of the unattractiveness or disadvantages of certain ideologies.

Still, no matter what the consequences of the human rights are, we’ll still be stuck with differences between human rights and morality because some of the consequences of some rights will be clearly immoral. The two will probably never completely overlap. Some of the uses of human rights will produce outcomes that are a net negative from a moral point of view, even in the long run. So how should we react to people exercising their rights in an immoral way and in a way that produces immoral outcomes? It’s difficult, at first sight, to contemplate the use of morality to tell them to stop, since they are exercising their rights. However, rights are seldom absolute and can be limited if necessary. It depends on the nature of the immoral outcomes of the use of human rights. When we’re talking about an outcome that is immoral because it offends or hurts the feelings of people, the justification to do something about it is a lot less strong than when we’re talking about an outcome that is immoral because it violates the rights of people. In the latter case we should act and try to find a balance between the rights of different people, namely those people exercising their rights in an immoral way and those suffering the consequences of this exercise. In the former case, our actions should probably be limited to persuasion, education etc.

Another argument in favor of a right to do wrong does not focus on consequences. Rights entitle us to make our own choices, and making your own choices is a moral good in itself. If this moral good leads to immoral choices and these choices are immoral because of the negative consequences for other people, then it’s not necessarily those consequences that are most important. If we force people to do the right thing, we’re taking away their right to make their own choices, and we’d also be acting immorally. Hence, there’s a conflict between two moral maxims, and it’s not obvious that the maxim that says we should limit negative consequences for others is always the most important of the two. It depends on the harm done by those consequences, and the degree of choice limitation that would result from trying to avoid those consequences.

No matter what we do, there will always be cases of rights that result in wrongs, just as there are moral wrongs without corresponding rights (keeping promises is moral but not a right; the same is true for telling the truth, helping friends, being faithful to your spouse etc.). Of course, many actions are both morally wrong and a violation of rights, or both morally right and respectful of rights, so we shouldn’t make too much of an issue of the right to do wrong. But still, it is an issue and it’s good to know that it’s an issue.

Does the existence of a right to do wrong imply that rights are divorced from morality? Well, it makes it a bit harder to argue that rights are merely a subset of morality. But it doesn’t mean that we should go to the other extreme and say that rights are an exclusively legal matter separated from moral concerns. That extreme would land us squarely in the territory of legal positivism, or the theory that states that we only have those rights that are recognized in law. And that’s not a pleasant territory since it makes it impossible to challenge deficiencies in the rights recognized by the law. In order to challenge those deficiencies, you need a notion of moral rights, rights that are not yet (fully) recognized by the law (there wouldn’t have been a Martin Luther King in the land of legal positivism for example). But in order to have moral rights, rights have to belong to morality, and it seems that a right to do wrong makes this belonging problematic. However, we can anchor rights in morality by arguing that morality is more than the teaching of what we should or shouldn’t do. We just stipulate that rights talk belongs to morality, and conflicts between elements of morality – in this case rights and wrongs – are nothing unusual.

More posts in this series are here.

Limiting Free Speech (44): Hate Speech as a Speech Act

As in J.L. Austin’s phrase, “how to do things with words”, we actually do things when we speak. When we use language, we don’t just say things, describe things or communicate, but we also act, very much in the same way as when we pick up a stone or push someone around. When we use language in education we educate people and make better persons. When we apologize we heal people. When we command we make people do certain things. Etc. Now, my argument is that hate speech is a kind of speech act understood in this way, and more specifically it is a form of command. Those who engage in hate speech typically use speech that takes the form of a command, explicitly or implicitly. They want to coerce other people to act in certain ways, and they do this in two ways (usually combined in one single speech act):

  • They want to coerce their (potential) followers to act in certain ways towards hated groups. For example, people proclaiming that homosexuals are sinners are not just describing a reality (or what they believe to be reality) or communicating information about homosexuals (or what they believe to be information). On top of that, they also want other people to avoid homosexuals, to ostracize them, to discriminate them, or even to kill them. To the extent that they succeed, they engage in speech acts, and not merely speech.
  • They also want the hated groups to act in a certain way. In most cases, they want them to go away, know their place, keep silent, change their habits etc. The burning of a cross in the front yard of the only African-American family in the neighborhood is a clear sign that these people aren’t welcome. Again, when these speech acts succeed in driving people away they are more than just speech.

A speech act is an act or an action in the dictionary sense of the accomplishment of an objective, the causation of change by the exertion of power etc. Given that it’s not “pure speech” it’s not obvious that it should be a priori and absolutely protected by freedom of speech. (Just like abuse in private is not merely a private act and shouldn’t a priori be protected by the right to privacy). It’s a form of speech that, like other actions, has real consequences for real people. These people may have rights that protect them against these consequences, such as the freedom to choose a residence, the right not to be discriminated against, the right to life etc. When speech acts violate these rights, there’s some balancing to do and it’s not the case that some people’s right to free speech always takes precedence.

Limiting Free Speech (43): The Consequences of Hate Speech

Some of the consequences of hate speech are human rights violations; others are not. Only the former are good reasons to criminalize hate speech and carve out an exception to the right to free speech. Rights can only be limited for the sake of other rights or the rights of others (more here). Let’s go over the different possible consequences of hate speech and see whether or not they imply rights violations.

Hate speech lowers self-esteem in the targets. People who are repeatedly subjected to hateful remarks or jokes about their race, gender, sexual orientation etc. tend to develop feelings of inferiority, stress, fear and depression. Of course, there’s no right not to be depressed, fearful, stressed etc. Therefore, we can say that hate speech should be protected speech when its consequences are limited to these. These are harmful and brutal consequences, but not harmful or brutal enough to be rights violations. We should be concerned about them and try to do something, but this “something” doesn’t include limiting free speech rights. However, people who are extremely intimidated and stressed and who have a deeply negative view of themselves tend to isolate themselves. Isolation isn’t a human rights violation, but couldn’t we argue that willfully isolating people means violating some of their rights? Isolated people don’t speak, assemble, associate etc. In that case, we could argue for limits on the rights of hate mongers.

Hate speech often has even more extreme consequences. Targets of hate speech may feel compelled to leave their homes and move elsewhere, to quit their jobs, and to avoid certain parts of town and public areas. This is a direct violation of their freedom of movement, freedom of residence, right to work and possibly even their right to a certain standard of living. It’s obvious that the free speech rights of the haters should in such cases be deemed less important than the many rights of their victims.

Hate speech can also means invasion of privacy, for example in the case of repeated phone calls, hate mail, or stalking.

Violations of property rights are another possible consequence of hate speech. Hate speech sometimes means vandalism, graffiti (sometimes even inside the homes of the targets), cross burning in someone’s front lawn etc. These cases of hate speech already start to resemble hate crime.

The line between hate speech and hate crime is even thinner when speech is not just hateful but an incitement to violence. For example, hate speech can provoke race riots; it can help hate groups with an existing tendency toward violence to attract new recruits etc. (a larger group will feel more confident to engage in hate violence). And what if hate speech allows hate groups to gain control of (local) government? That would probably lead to discriminating policies and laws.

This overview of possible and actual consequences of hate speech should concern those of us who care about more human rights than just freedom of speech, and who know that different human rights aren’t always in harmony with each other. In some circumstances, some rights need to give way in order to protect other rights. That’s an unfortunate but inevitable consequence of the value pluralism inherent in the system of human rights.

Racism (12): Implicit Racism in Criminal Justice

Overt manifestations of racial or other types of group-based hate, prejudice or discrimination are relatively rare these days because they have become increasingly unacceptable. However, the racist or prejudiced ideas that form the basis of such overt manifestations aren’t necessarily less common than they used to be. Or perhaps the word “idea” is too strong. “Unconscious biases” or even “instincts” may be more appropriate terms. “Instincts” in this context is a term used to link contemporary racism and prejudice to lingering aspects of early human evolution encouraging distrust of other groups as a survival strategy.

Indeed, certain psychological experiments have shown how easy it is to induce people to hateful behavior towards members of other groups, even people who self-describe as strongly anti-prejudice. There have also been some notorious cases of the effect of hate propaganda on people’s behavior.

On the other hand, there are some indicators that suggest a decrease in the levels of racism, and there are theories that say that it should decrease. However, other data suggest that “unconscious biases” are still very strong:

[T]his Article proposes and tests a new hypothesis called Biased Evidence Hypothesis. Biased Evidence Hypothesis posits that when racial stereotypes are activated, jurors automatically and unintentionally evaluate ambiguous trial evidence in racially biased ways. Because racial stereotypes in the legal context often involve stereotypes of African-Americans and other minority group members as aggressive criminals, Biased Evidence Hypothesis, if confirmed, could help explain the continued racial disparities that plague the American criminal justice system.

To test Biased Evidence Hypothesis, we designed an empirical study that tested how mock-jurors judge trial evidence. As part of an “evidence slideshow” in an armed robbery case, we showed half of the study participants a security camera photo of a dark-skinned perpetrator and the other half of the participants an otherwise identical photo of a lighter-skinned perpetrator. We then presented participants with evidence from the trial, and asked them to judge how much each piece of evidence tended to indicate whether the defendant was guilty or not guilty. The results of the study supported Biased Evidence Hypothesis and indicated that participants who saw a photo of a dark-skinned perpetrator judged subsequent evidence as more supportive of a guilty verdict compared to participants who saw a photo of a lighter-skinned perpetrator. (source)

Maybe racism hasn’t decreased but has just become more difficult to spot, including for the racists themselves. Swastikas and KKK hoods aren’t so common anymore, and instead we have to look for unconscious biases, implicit racism or even unintentional racism.

The Causes of Human Rights Violations (21): Hate is Just a Word Away

It’s shouldn’t be surprising that there are so many human rights violations. Psychologists have shown how easy it is to induce cruelty, prejudice and hate. There’s for example the famous Milgram experiment. People seem to be very obedient to authority figures, even if they are told to be cruel to other people (giving them electric shocks in this case; the shocks were fake but the subjects didn’t know that). Milgram’s test suggested that the millions of accomplices in the Holocaust were violent and cruel because they were following orders. Authority made them do things that violated their deepest moral beliefs. If you see how much pain people are willing to inflict on another person they don’t even know, simply because they are ordered to by an experimental scientist, you can imagine how easy it is for real authority figures to “convince” them. Which doesn’t mean that ordinary perpetrators of genocide or other acts of cruelty are guiltless tools of central command.

(The Milgram experiment was recently “reproduced” in a game show on television).

A similar experiment is the Hofling hospital experiment. Nurses were ordered by unknown doctors to administer what could have been a dangerous dose of a (fictional) drug to their patients. In spite of official guidelines forbidding administration in such circumstances, Hofling found that 21 out of the 22 nurses would have given the patient an overdose of medicine, even though they were aware of the dangers.

Then there are the Asch conformity experiments. One subject and a series of fake subjects were asked a variety of questions about an image containing lines, such as how long is A, compare the length of A to an everyday object, which line is longer than the other, which lines are the same length, etc. The group was told to announce their answers to each question out loud. The fake subjects always provided their answers before the study participant, and always gave the same answer as each other. They answered a few questions correctly but eventually began providing incorrect responses. You wouldn’t expect a majority of people to conform to something obviously wrong, such as “line A is longer than line B” when it’s clear to the eye that the opposite is the case. However, when surrounded by individuals all voicing such an incorrect answer, many participants also provided incorrect responses. This kind of group pressure and tendency to conform can explain mob violence and government organized genocide.

In the Stanford prison experiment, also called the Zimbardo experiment, people were selected to play the roles of guards and prisoners and live in a mock prison in the basement of the Stanford psychology building. The participants adapted to their roles well beyond what was expected. The guards became authoritarian and effected draconian, sadistic and abusive measures which were even accepted by the suffering prisoners.

And, finally, there is the Third Wave experiment demonstrating the appeal of fascism for ordinary people.

These social psychology experiments show that government efforts to mandate and enforce cruelty, prejudice, racism, hate and even genocide fall on fertile grounds. Human nature’s dark side seems to lurk just below the surface, ready to come out, and merely awaiting the wink of the boss or the group. A negative dialectic quickly settles in between government prejudice and private prejudice.

Hate (7): Should Hate Crime Laws Cover Attacks on Pedophiles?

I won’t repeat my somewhat hesitant argument in favor in hate crime laws (you can go here, for instance). The more limited question I want to talk about today is whether such laws should not only cover hate attacks against blacks, gays etc. but also attacks against pedophiles. (I guess some of those attacks, when they occur, follow publication of the addresses of pedophiles in so-called registers, a topic of a separate post). In case you’re wondering, there are some jurisdictions that have included attacks on pedophiles in their hate crime laws (New South Wales in Australia is an example).

At first sight, it would seem reasonable to include attacks on pedophiles. Hate crime is a crime that is motivated or aggravated by prejudice, hate or contempt for a specific group of people. People can be victims of hate crime, not just because of their mere membership of a group – sometimes, people get beaten up just for being black, for instance – but also because of the activities that they engage in and that are deemed immoral by the wider community – attacks on gays fall under this heading. You could claim that attacks on pedophiles are similar. But I don’t think they are.

Before I say why, let me be absolutely clear: I don’t approve of mob attacks on pedophiles or vigilante violence against them. Far from it. I merely believe that such attacks shouldn’t be covered by hate crime laws. They should be illegal as any other violent attack, but the sentencing or penalties shouldn’t be increased on account of the incontestable hatred of the motivations, as is usually the case in hate crime.

Now, why do I believe that hate crime legislation can often be beneficial but not in the case of pedophiles? Not because I think that pedophiles are less “deserving” than other groups that do and should enjoy the protection of hate crime laws. Obviously they are less deserving but that’s not the reason. Remember the rationale behind hate crime laws: they are intended to avoid situations in which hate crime can stigmatize and terrorize discriminated minorities. By punishing violent attacks against such minorities more severely than actions that are similar but otherwise motivated (i.e. the stabbing of a black person for his wallet rather than because of his race) we can discourage intentional stigmatization and intimidation of an entire group, and we therefore contribute to the ultimate equality of those groups and to the ideal of a tolerant and diverse society. Hate crime laws signal that the larger society is behind the minorities and willing to protect them and elevate them to equal rank. They signal not only that violence as such is wrong, but also violence directed at the marginalization and intimidation of entire groups.

We don’t want any of this for pedophiles. We don’t want them to suffer violent attacks, but neither do we want to grant them equal standing. Moral condemnation of their activities is not unjustified, and they aren’t a persecuted minority. Their activities harm non-consensual parties, which can’t be said of gays, blacks etc. and hence they do not deserve equal standing.

Some would say that the case of the pedophiles undermines the whole idea of hate crime because it shows that hate crime laws inexorably lead to a widening of protected groups and put us on a slippery slope towards an increasing criminalization of society (“what next: make it a hate crime to slash the wheels of SUVs?”). But I don’t think that’s correct. Slippery slope arguments are too easy.

Limiting Free Speech (39): From Hate Speech to Hate Crime, the Case of Rwanda

Although I take human rights, and especially freedom of expression, very seriously (I wouldn’t be writing this blog otherwise), I also believe that hate speech can produce hate crime. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. This is called incitement to violence. I do understand the problems with this justification of limits on freedom of speech: it can be abused by those who want to muzzle their opponents. If people react violently to criticism, ridicule or insults, then they may claim – wrongly in my view – that the responsibility for the violent acts lies with those making “incendiary remarks”. You can read my objections against this type of argument here.

Nevertheless, I think there are other cases in which hateful words can turn into hateful crimes. The classic example is Radio Mille Collines, the Rwandan hate radio that called for the extermination of the Tutsi ethnic minority population before and during the 1994 Rwanda Genocide (it infamously swept up the Hutu’s to start a “final war” to “exterminate the cockroaches”):

During the 1994 Rwandan genocide, Radio Télévision Libre des Mille Collines (RTLM) broadcast anti-Tutsi propaganda and called for violence against Tutsis, which many experts believe significantly contributed to the violence. An interesting new job-market paper by David Yanagizawa seeks to determine the precise role that RTLM played in the genocide. Yanagizawa relies on “arguably exogenous variation in radio coverage generated by hills in the line-of-sight between radio transmitters and village” to determine the causal effects of RTLM. He finds that RTLM played a significant role in the genocide: full village radio coverage increased violence by 65 percent to 77 percent. The effects are larger in villages with a large Hutu majority and in villages without access to other information sources i.e. villages with lower literacy rates. In total, Yanagizawa calculates that the radio station’s broadcasts explain 45,000 deaths (or 9 percent of the total death toll). (source)

If this is correct, it’s difficult to maintain the doctrinal position that freedom of speech is always and absolutely beneficial and worthy of protection without exception. Unless of course you claim that freedom of speech is more important than the right to life. I refer to an older post on balancing different human rights.

Don’t get me wrong, freedom of speech is absolutely vital, for many different reasons (some as fundamental as thought itself, see here), and no regular reader of this blog can say that I’m ambivalent about it. But what I do object to is the school of thought that believes free speech is the uppermost value, trumping all others in all cases and all circumstances. Maybe this quote from Isaiah Berlin can help to get my point across:

I came to the conclusion that there is a plurality of ideals, as there is a plurality of cultures and of temperaments. I am not a relativist; I do not say “I like my coffee with milk and you like it without; I am in favor of kindness and you prefer concentration camps” — each of us with his own values, which cannot be overcome or integrated. This I believe to be false. But I do believe that there is a plurality of values which men can and do seek, and that these values differ. There is not an infinity of them: the number of human values, of values that I can pursue while maintaining my human semblance, my human character, is finite — let us say 74, or perhaps 122, or 26, but finite, whatever it may be. (source)

This description of Berlin’s value pluralism is from the Stanford Encyclopedia of Philosophy:

According to Berlin’s pluralism, genuine values are many, and may—and often do—come into conflict with one another. When two or more values clash, it does not mean that one or another has been misunderstood; nor can it be said, a priori, that any one value is always more important than another. Liberty can conflict with equality or with public order; mercy with justice; love with impartiality and fairness; social and moral commitment with the disinterested pursuit of truth or beauty; … knowledge with happiness; spontaneity and free-spiritedness with dependability and responsibility. Conflicts of values are “an intrinsic, irremovable part of human life”; the idea of total human fulfillment is a chimera. “These collisions of values are of the essence of what they are and what we are”; a world in which such conflicts are resolved is not the world we know or understand. … “we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others”.

Hate (6): Hate Crime

Practically all crime is “thought crime” in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – the act does not make guilt unless the mind be guilty. If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.) John Holbo (source)

This nicely debunks the claim that hate crime laws – laws which make the punishment for an existing crime more severe when the crime was motivated by hate for the segment of the population to which the victims belongs – institute “thought crimes” and make thoughts, opinion and beliefs illegal. I believe that hateful motives are aggravating circumstances that should make a penalty more severe. A hate crime is not only a crime against the immediate victim, but is intended to terrorize a whole segment of the population. It creates therefore more victims than is apparent at first sight.

When you mistakenly believe that hate crime laws create thought crimes, you have to conclude that proponents of hate crime laws do not want to punish behavior but want to eradicate hate, or at least reduce the levels of hatred in a society. And then you have a cheap shot: how stupid to want to eradicate hate! Haha! (There’s an example of this kind of reasoning here*). Indeed, that would be stupid, if that’s what proponents of hate crime laws would propose. But they don’t. They simply want to punish crimes, and want to punish a specific kind of crime in a specific – and especially tough – way. They know that there will always be hate, that hate is the price to pay for a free society. Maybe hate crime laws can reduce the amount of hate in a society, but that’s not the main purpose. Hate crime laws want to punish behavior and want to protect people from fear. And they want to signal that society has understood the difference between hate crimes and other types of crimes, even if these other types of crimes have the same material results.

* The article linked to also irresponsibly blurs the differences between hate speech and hate crime. When you do that, it’s of course much easier to attack hate crime laws because then it becomes much more “obvious” that hate crime laws are “in fact” thought crimes.

Limiting Free Speech (29): Cross Burning

Cross burning is a typically, if not uniquely American type of “speech”. It’s the quintessential expression of hatred of African-Americans. The usual culprits are members of the Ku Klux Klan or KKK (and copycats). Historically, cross burning has been a signal of impending violence and terror. It was often a morbid prelude to lynchings or other acts of racist violence.

Nowadays, cross burnings are relatively rare, and intended to intimidate rather than signal the first step in actual violence. Nevertheless, given the history of cross burning, present-day occurrences understandably continue to instill a real sensation of fear and panic in the intended targets. Which is of course the intention.

The question is: should cross burning be considered as a form of speech that merits the protection of the freedom of speech (the First Amendment in the U.S.), or should it rather be an example of hate speech that can and should be made illegal?

If we focus on the U.S. for the moment, then the leading Supreme Court case is Virginia v Black. This case deals with 2 different criminal cases of people convicted for cross burning. In one case, an argument escalated and two defendants burned a cross in the front yard of their African-American neighbor. The other case involved a cross being burned in the garden of a member of the KKK during a private KKK “party”. The burning cross, however, could be seen by the general public.

Virgina v Black protects cross burning as a form of free speech, but also provides the possibility to make it illegal under certain circumstances (as we’ve seen many times before in this blog series on limiting freedom of speech, the circumstances are always important). And, according to Virgina v Black, the circumstances which would make it possible to restrict freedom of speech in the case of cross burning are not limited to those which can normally restrict freedom of speech in other cases. Speech acts that produce an imminent danger of physical violence, acts that result in reckless endangerment (in this case the risk that the act evolves into an arson attack), or speech acts that lead to trespassing are not protected by the First Amendment. Physical violence, arson and trespassing are illegal, and the fact that they are combined with a speech act doesn’t make them legal. If a speech act is combined with such illegal acts, or is likely to lead to such acts, then the speech acts are not protected by the right to free speech.

According to Virgina v Black, the circumstances which can make cross burning illegal go beyond this and include the intent of the speaker to intimidate and terrorize specific and identifiable persons, even if these persons are not in immediate physical danger. And cross burnings today usually doesn’t result in physical danger.

Now, you could say that cross burning is by definition intended to intimidate, but that’s not the case. Not all cross burnings are intended to intimidate – take the example of the KKK party cited above – and not all cross burnings are equally intimidating. It depends on the circumstances in which the cross burning takes place, and on the fact if it is clearly targeted against certain individuals. If the cross burning takes place close to the homes of African-Americans, and are part of a long chain of intimidation and racist incidents, then they are more intimidating than in other cases. And more intimidating means a higher risk that the rights of the targets will be violated. The African-Americans may feel forced to move, which violates their right to freely choose their residence. They may feel that it is necessary to keep their children away from school, which is a violation of their right to education, etc. In such cases, the right to free speech of the KKK members should obviously be restricted for the benefit of the rights of their targets. But in other cases, they may be allowed to wallow in their silly hobby.

I think Virginia v Black strikes the right balance. For another Supreme Court case on cross burning, see here.

Terrorism and Human Rights (18): Right-Wing Terrorism in the U.S., and the Shared Responsibility of Conservative Media

Only days after the attack on Dr. Tiller, the U.S. is shocked by yet another terrorist attack by a right-wing extremist, this time at the Holocaust Museum in Washington. Some have questioned the role of the media in all this. It’s true that parts of the U.S. media, especially on the conservative side, are not characterized by nuanced analysis and balanced reporting. There’s a lot of hate speech, stereotyping and shouting on cable news, on the radio and on the internet. So it’s fair to say that there may be a risk that the media are fanning and nurturing extremism and hate in society, and that they may be responsible for pushing sick people over the edge. (See also here).

I personally regret the lack of quality in the media, and I do believe that journalists and pundits should be more careful in what they say and how they say it. But I also believe that critics of the media should be careful when deciding responsibilities and causal relationships. Society is complex, and people are driven by many factors. Still, most people are ultimately responsible for their own acts (I don’t know enough about the two cases at hand to conclude that the mental condition of the perpetrators at the time of the crime was such that they could be held criminally responsible).

We run the risk that these terrorist events will lead to calls for a more restrictive interpretation of the freedom of speech of the media. Let’s hope that this risk incites the media to question their behavior and to abandon the language of hate.

Hate (5): Why Do We Need Hate Crime Laws?

We punish the crimes of murder, kidnap, and battery. Why isn’t that enough? … It strikes me as weird that the mere utterance of a racial slur during a violent act automatically makes it worse. Ta-Nehisi Coates (source, part of this quote is actually Coates citing someone else)

Doesn’t the concept of hate crime imply a punishment of expression and thought? And isn’t it therefore essentially a thought-crime, and as such objectionable to people who cherish freedom of thought and speech? Shouldn’t someone’s convictions and expressions be immaterial to their punishment? And shouldn’t we just focus on what someone did rather than what he or she was thinking or saying when he or she did it?

Not really. Intent, motive and state of mind have always been crucial to punishment, hence the difference between premeditated murder and manslaughter. Killing or hurting someone because of race, gender or sexual orientation is worse than mere killing or hurting, and should incur a more severe punishment because it is meant not only to harm the victim but to terrorize an entire community.

Hate (3): Is Hate Crime Caused by Poverty and Lack of Education?

This paper claims that hate crime is independent of economic deprivation and lack of education. Hate crimes are typically acts of violence against persons or their property committed for no other reason than these persons’ membership of a certain religion, race or ethnic or other group. Those who commit hate crimes can act on an individual basis, but are often members of so-called hate groups and may act together with other members.

The paper cites a number of data that indicate that poverty and ignorance aren’t the main drivers of hate crime. Lynchings, for example, were not correlated to economic growth. They didn’t rise during the Great Depression. The existence of hate groups such as the Ku Klux Klan is unrelated to economic indicators such as unemployment. We even see that there is a higher probability that a hate group is located in an area with a relatively large share of the population with higher education. The wave of violence against foreigners in Germany in the 1990s also didn’t show a relationship between unemployment rates per county, and the number of incidents in a county. The same for levels of education and wages.

Limiting Free Speech (20): Flag Burning and Flag Desecration

Flag burning (or other types of desecration of national flags) is a form of speech. It may not be a very refined or profound expression of opinions or ideas, but it is an expression nevertheless. Flag burning expresses disgust and hatred for a certain country or a country’s government and policies. It’s typically a very emotional form of speech, devoid of rational argument and reduced to simplistic slogans, and most often used in a setting of mass protest.

Given that it is a form of speech, it should, a priori, enjoy the protection of the right to free speech. However, in certain exceptional circumstances there’s a rationale for prohibiting it. It is a form of hate speech, and the rules governing limitations of hate speech apply here as well. In a nutshell: hate speech can be prohibited when it incites violence.

Now, it’s not impossible to imagine cases where flag burning can incite violence (burning the flag of Israel in front of a surrounded Jewish enclave when a pogrom is imminent, for example), but I guess that most cases of flag burning are much less harmful. So a general law forbidding flag burning doesn’t seem justifiable. There have been several attempts in the U.S. Congress to vote for an Amendment to the U.S. Constitution to allow a ban on flag burning:

On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states. (source)

Much of this is of course political posturing of politicians trying to be the most patriotic. Given the rarity of flag burning in the U.S., it’s also a typical example of a solution in search of a problem.

Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. Richard Savage (source)

The fact that patriotic people are offended by flag burning isn’t a sufficient reason to ban it. (I’ve argued here against a right not to be offended).

Limiting Free Speech (16): Fighting Words

Fighting words are written or spoken words expressed to incite violence. This is related to the topic of hate speech, but it isn’t quite the same thing. Hate speech isn’t necessarily intended to incite violence (just simple hate in some cases).

In Chaplinsky v. New Hampshire (in 1942), the U.S. Supreme Court decided that “fighting words”, words that tend to incite an immediate breach of the peace, are among the

well-defined and narrowly limited classes of speech [which] the prevention and punishment of have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Speech that merely causes anger, offense, insult or outrage does not amount to fighting words. Fighting words must present an actual threat of immediate violence or must “reasonably incite the average person to retaliate.”

It’s not true that certain words inevitably provoke violent reactions by individuals. Rather, one should take into account the context in which the words were uttered, not merely the content of the words themselves.

Given the rules for limiting free speech described in this post, the case of fighting words is rather simple. Inciting violence leads to violations of individual rights to security and bodily integrity, and in many cases these rights should take precedence over the right to free speech. It seems difficult to accept that hurting someone is a lesser evil than limiting someone’s right to speak and threaten.

Terrorism and Human Rights (6): The War on Terror

The War on Terror, started by the U.S. government as a response to the September 11, 2001 terror attacks and later joined by other governments, has had and continues to have grave consequences for the human rights of their citizens and of citizens of other countries. This is a high price for an uncertain gain.

However, before I list these consequences, I would like to make it clear that I believe, as any rational human being, that terrorism is evil, that it has to be destroyed and that democracies have a right to defend themselves against violent, anti-democratic fanatics.

I also believe that democratic governments should be especially vigilant because the freedoms that they are elected to protect, offer opportunities for those who hate freedom, opportunities that do not exist in other political systems. Potential terrorists find it relatively easy to enter a democracy and operate in it. A democracy is a very vulnerable form of government because of the freedom it gives to everyone, even those who don’t mean well.

The freedoms of a democracy can be and are abused, but this, it seems, has frightened democratic governments to such an extent that they have decided to limit these freedoms up to the point that they are in danger of abandoning their values, and hence doing the work of the terrorists for them. It can be acceptable to limit certain rights for the protection of other rights, but the right to security has taken on an absolute priority, at the expense of all other rights. There is no reasonable balance anymore. Some have called the war on terror a “war on freedom” (source).

1. Civil liberties

Governments try to defend their countries against terrorist attacks by limiting civil liberties in their territories.

  • The right to privacy has been limited: CCTV has become ubiquitous, DNA databases have been created, eavesdropping and wiretapping have been legalized etc.
  • “No-fly-lists” have come into force, limiting the freedom of movement of even those who have written critically of the government or attended peace-protests.
  • Hate speech laws have been voted to silence jihadist hate preachers, silencing others at the same time.
  • “Racial profiling” by the police has turned innocent people into possible suspects, often inverting the burden of proof.
  • Habeas corpus has been limited, periods of detention without charge extended, sometimes indefinitely (for “enemy combatants”).

However, in spite of all this, the constraints on a government’s actions within its territory are sometimes still considered to be inhibiting:

  • “Extraordinary rendition” has been covertly practiced, allowing suspects to be tortured outside of the territory by professional torturers in other countries.
  • Extra-territorial prisons have been created, in Guantanamo, but probably elsewhere as well, where suspects can be tortured or held indefinitely and where the Geneva Conventions supposedly don’t apply.

2. Mentalities

The war on terror has also changed people’s minds and attitudes.

  • The media have started to censor themselves. Solidarity with the government at war and the commander-in-chief, or the fear of being perceived as unpatriotic, appeasers, “useful idiots” or even open allies of the enemy has turned them into uncritical supporters of the war.
  • Citizens have turned on Islam and Muslims. Xenophobia and more specifically islamophobia have undermined the ideals of tolerance and multiculturalism, and have in certain cases even led to hate crimes against Muslims.
  • A “culture of fear” has been created by the terrorist but also nurtured by irresponsible western politicians. This fear has damaged democracy. Not only have the media relinquished their traditional role as watchdogs. Politicians as well, and especially incumbents, have abused the fear of terrorism to harness support. Alert levels seem to go up just before elections.

3. Preemptive war

The US government has elaborated and implemented the strategy of preemptive war, a war

waged in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war. (source)

The Iraq war was deemed a preemptive war because Iraq was allegedly about to attack the US with weapons of mass destruction, or supply these weapons to terrorists. Whatever the merits of the case against Iraq – and with the passing of time these seem to become weaker and weaker – the war has been framed, correctly or not, as a necessary stage in the ongoing war on terror. It has, however, resulted in massive numbers of casualties on both sides. The human rights violations caused by the war stand in no relation to the violations caused by terrorism or the violations that could have been caused by Saddam.

In any case, you can’t solve the problem of terrorism by violent means only. Terrorism has causes, and there will be terrorism as long as these causes exist. (Mind you, I don’t want to excuse or justify terrorism).

4. Counter-productive

It is now widely believed, even in US government circles, that the war on terror is counter-productive. Especially the wars in Iraq and Afghanistan, the torture in Abu Ghraib and the detentions in Guantanamo have produced a backlash and have increased rather than reduced the terror threat. The 2007 National Intelligence Estimate issued the following among its “key judgments”:

The Iraq conflict has become the “cause celebre” for jihadists, breeding a deep resentment of US involvement in the Muslim world and cultivating supporters for the global jihadist movement. (source)

The war on terror has created and exacerbated resentment, hatred of the West and anti-americanism. And with anti-americanism often comes hatred of democracy and freedom and Islamic radicalization. Apart from the removal of the Taliban in Afghanistan, there is no evidence that any of the strategies in the war on terror has done any good (source).

5. Misnomer

There is something fishy about the concept of a “war on terrorism”. This “war” is in fact no such thing. It is in essence crime prevention and law enforcement. There is no well-defined enemy. Anyone can at any time become an enemy. For this reason, there is no conceivable end to the war. And if you claim to wage a war on terrorism, you might as well claim to wage a war on carpet bombing. Both are tactics or strategies, not something you wage war against.

If you insist on calling anti-terrorist actions a war, then you give too much credit to the riffraff you’re opposing. Rather than deranged criminals they can call themselves soldiers. And soldiers defend something. You legitimize them. You turn a crime into a two-sided struggle in which each side defends its positions. This in turn leads to the view that the war on terror is a war of the West against the rest, bringing back images of colonialism, imperialism and the crusades, again legitimizing the terrorists, helping to consolidate their often internally opposed forces, and making them honorable in the eyes of ordinary citizens outside of the West.

I can understand that the concept of a “war on terrorism” is useful for the executives in the West, because an executive that is at war has more powers, less oversight, more popular support and less criticism, but it’s a meaningless and dangerous concept. Let’s give it up.

Limiting Free Speech (3): Hate Speech

Hate speech (or antilocution, or fighting words) is speech that incites other people to hate a certain group in society defined by common characteristics (race, gender, religion etc.). It usually also incites to commit violence and discrimination based on hatred.

The most famous case is that of the Danish Muhammad cartoons. These cartoons led to worldwide protest and expressions of anger and hate, not only against the cartoonists in question, their newspaper or their country, but against liberals and democrats in general.

However, hate speech is by no means an exclusively Muslim matter. It can be found everywhere where there is hate: it can be racist, anti-gay, islamophobe, etc. It can also be framed in anti-terrorist language: many western countries have initiated legislation outlawing hate speech that is part of Muslim mobilization of terrorists (in militant mosques for example).

Given the importance of freedom of expression, it is not universally accepted that hate speech can be legally prohibited. There is of course article 20 of the International Covenant on Civil and Political Rights which outlaws hate speech:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, contrary to hate crimes, such as attack on gays or muslims or writers/movie makers/cartoonists critical of Islam etc., the basic rule should be that speech as such is not a crime, even speech expressing or inciting hatred, violence or discrimination. Speech is protected by the right to free speech.

However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity, the right not to suffer discrimination etc.). The general defense of hateful speech has therefore some exceptions. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. Hate is taught. The example of the Muhammad cartoons protests is again telling in this respect. Many protesters were encouraged by some Muslim leaders to commit acts of violence.

But much depends on the circumstances, the context and the manner of speech. Islamophobia in front of a crowded mosque is obviously not the same thing as islamophobia in an obscure publication. Examples of speech, in the wider sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, are more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

When speech has implications for the rights of some people, it is legitimate to consider limiting this speech, according to the rules set out in the introductory post of this series.

An important distinction here: all this is about hate, not about speech that is merely offensive, insulting, ridiculing etc. That’s the topic of another post. The distinction, however, can be blurred. What is hateful and what is merely offensive is a matter of personal conviction, it differs between groups and it changes over time. Some groups may be more sensitive than others. If one decides to legislate the matter, this can complicate things.

Moreover, what to someone can be seen as hate – for example homophobia – may be a central tenet of someone else’s religion and therefore protected by the freedom of religion. However, the freedom of religion is not absolute either.

And finally, some examples of speech that were once considered to be hateful – such as “nigger” – have been reclaimed by the groups that were previously targeted, and are sometimes even used as a badge of pride.

Another distinction: it is perhaps possible to imagine hate speech that is not directly or indirectly inciting violence and/or discrimination. Obviously, this kind of hate speech is less dangerous. However, like derogatory speech or offensive speech it does create a problem. It perpetuates negative stereotypes, devalues collective identities, deepens social cleavages and conflicts, makes it more difficult for the community to accept new identities, and it makes debate more difficult. So it makes it more difficult to create and uphold a tolerant, diverse society in which there can be civilized debate and discussion leading to better knowledge.

However, is this reason enough for a legal prohibition on hate speech? I don’t think so. Is it reason enough to combat hate speech with other means? Sure. The remedy for harmful speech is not necessarily prohibition but counter-speech, and sometimes it is best to just ignore some kinds of speech. Engaging the hate mongers, let alone prosecuting them, gives them legitimacy, publicity, and under-dog or victim status.

Limiting Free Speech (2): Holocaust Denial

In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.

What is Holocaust denial?

Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:

  • The Nazi government of Germany had a policy of deliberately exterminating the Jews
  • Over five million Jews were systematically killed by the Nazis
  • The extermination was carried out with tools such as gas chambers.

Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.

Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.

Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.

How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?

Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.

There are a few possible kinds of justification:

1. Antisemitism

There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.

However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.

The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.

One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.

In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.

2. Offensive speech

Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.

3. Libel

A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.

4. Democratic self-defense

Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.

Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.

To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:

One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls

You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws.

5. The defense of Israel

Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.

However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.

6. The special case of Germany

In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.

7. The interest of historical truth

Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.

Conclusion

There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.

Countries with laws against Holocaust denial

Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).

What Are Human Rights? (16): Limited Rights That Need to be Balanced Against Each Other

Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights. Georg Wilhelm Friedrich Hegel

Some rights can cause violations of other rights or of the rights of others, which is why rights have to be balanced against each other.

In specific instances of rights that come into conflict ’97 for example the right to free speech and the right to privacy ’97 a judgment has to be made about the priority of one right or the other. The decision can be made by a judge, but also by the legislator. There can be laws that limit one right for the sake of another. The phrasing of human rights articles in constitutions and treaties often provides the possibility of such legal limits.

These limits are an almost daily occurrence, even in a perfect system. The system of human rights is not a coherent and harmonious whole.

Libel or expressions of racial hatred, for instance, are often illegal, and with good reason. Expressions of hatred are not only insulting (people should be able to live with insults); they can also lead to discrimination or even physical harm. It is a thin line between aggressive words and aggressive actions.

The problem of course is how to decide between rights. On what grounds do we give priority to one right or the other? Only if we have a rule for this can we distinguish between legitimate and illegitimate limits on rights, or better between limits and violations. Part of the rule could be that some rights are clearly absolute. It seems unacceptable to kill someone, even if doing so would allow us to protect some other right of some other person. Limits on the right to life will then never be legitimate and this right should always have priority and can in turn limit other rights.

However, this rule leaves most problems of conflicts between rights unsolved because most rights are not absolute. One cannot always avoid moral, philosophical and hence contestable reasoning when taking a decision between rights. Some subjective judgment on the harm we would inflict when limiting one right or the other might help. In the case of a journalist who divulges intimate details about the private life of an actor, what would be the harm inflicted on the journalist when we limit his or her right to free speech? Probably less then the harm he or she inflicts when limiting the right to privacy of the actor.

Again, a judgment may not always be as easy as in this example. Deciding between rights remains a difficult matter and one that is better left to professional judges.

Cultural Rights (9): Ethnic Cleansing

Ethnic cleansing is the violent displacement of an ethnic group from a particular territory in order to create an ethnically “clean” unit, i.e. a territorial unit composed of only one ethnic group. The means used to achieve ethnic unity are:

  • direct military force
  • police brutality
  • genocide
  • the threat of force
  • intimidation
  • rape
  • pogrom
  • demolition of housing, places of worship, infrastructure
  • discriminatory legislation or policies
  • tribal politics
  • economic exclusion
  • hate speech, propaganda
  • rewriting of history, fabrication of historical resentment
  • a combination of the above.

Given these various “tools”, it is not correct to equate ethnic cleansing with genocide. There are more or less violent forms of ethnic cleansing, although all forms contain some kind of force, otherwise one would speak merely of voluntary migration. Deportation or displacement of a group, even if effected by force, is not necessarily equivalent to destruction of that group.

Given the element of force it is correct to denounce all forms of ethnic cleansing, not only on the grounds of some kind of ideal of multiculturalism, but also on the grounds of the self-determination of the people involved, of their right to settle where they want, their freedom of movement etc. It is defined as a crime against humanity.

The best known cases of ethnic cleansing are:

  • Bosnia and Herzegovina in the 1990s
  • Iraq during the Iraq war
  • India and Pakistan during their partition
  • The Georgian-Abkhaz conflict
  • Rwanda during the genocide
  • The relocation of Native American peoples from their traditional areas
  • The forced removals of non-white populations during the apartheid era
  • The Palestinian exodus
  • Central and Eastern Europe during and immediately after World War II
  • Darfur
  • etc.

However, it seems that this tactic has been known to humanity since a long time. Some even believe that the Neanderthals were victims of ethnic cleansing.

Some of the justifications given in defense of ethnic cleansing are:

  • To remove the conditions for potential and actual opposition. According to Mao Zedong, guerrillas among a civilian population are fish in water. By draining the water, one disables the fish.
  • To create a separate state for one ethnic group. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. A multicultural nation can never be legitimate according to nationalism, because one assumes that in such a state it is inevitable that some groups are ruled by others and hence do not have an authentic and autonomous existence. The only way to have homogeneous territories in our multicultural and melting-pot world with no clear territorial separation of groups within states, is the use of force.
  • To redeem a society that is literally “unclean” and “sick” because of the presence of inferior humans.