By Damien Theillier, president of the Institut Coppet, Paris.
Hate speech is not a crime so long as people are not physically threatened. Everything can be said within the limits of respect of the terms of private property owners.
Two years ago, on January 11, 2011, the columnist Eric Zemmour was brought to court for allegedly making controversial statements, arguing that the number of delinquents is stronger among the immigrant population. This tradition is continued today by French Minister Manuel Valls who proclaims his will to ban the French comedian Dieudonné’s shows because of his anti-Semitic messages.
Do we have the right to say anything? Can we let people spend their time insulting each other, denying Holocaust? Don’t we need an authority to restore order?
A conventional answer to this question would be to say that we have the right to say anything that is not prohibited by law. So it’s up to the law to define what can be said and what can’t be said. So for example in France, censorship is legal against speech with shocking intentions, distressing for some communities, from obloquy to defamation, from incitement to hatred, to homophobia.
Many are delighted by the fact that Dieudonné is censored. They think he is a coarse and dangerous jester, who is not funny and actually not a humorist but a political agitator instead. They think he is an anti-Semite, an anti-liberal etc.
Let’s admit it… And so what?
Classical Liberalism is a political philosophy which determines when the use of legal compulsion is justified or not. The fundamental assumption of this philosophy is the principle of non-aggression: it is not legitimate to initiate force against non-aggressive people. The term “aggression” is here intended in the strong sense of the word, meaning the use of violence or the threat of using violence against a person or a person’s property, as is the case in homicide, rape or theft. No word, no speech nor any insult can be assimilated to a physical aggression. And hate speech is not a crime so long as people are not physically threatened. Ideas do not kill by themselves, even if they are stupid, wicked, full of hatred or rude.
The fault of moralism according to J.S. Mill
Moralism in politics is the confusion between the moral and of the legal. Thus, verbal violence is morally condemnable but not penally condemnable. What is morally condemnable, such as vices, should not be confused with what is juridically condemnable (crimes such as aggressions against persons or property).
J.S. Mill defended this idea in the famous book “On Liberty” (1854). According to him the one and only reason for which a civil community can legitimately “use force against one of its member, against his will, is to avoid that someone else is hurt.” The role of the power to coerce is strictly to avoid physical aggression.
So, he says: “It is better to turn a while to the ones who say that every idea can be conveyed freely, provided doing that with measure and keeping in mind that the limits of fair discussion are not to be exceeded”.
A lot could be said about the inability to fix with certainty these supposed limits, because if the criterion is the degree of offense proven by those whose opinions have been attacked, experience seems to testify that offence exists when the attack is eloquent and powerful: they will then accuse every foe who will abash them of lacking of moderation.
Hence, freedom of expression is a negative kind of freedom. It consists in not to prevent to anyone, in a coercive way, to convey ideas and opinions even when they are judged false. This tolerance is not synonymous with relativism, which would mean to give equal weight morally to all opinions. It opens, on the contrary, to debate, to the right of reply, to argumentation and to persuasion. Mill writes: “The only measures that society is justified to take to express its repulsion or its disapproval for such a behavior are advice, instruction, persuasion and the discontinuance of the attendance of the individual by the ones who would deem it necessary for their own good”.
Everything can be said within the limits of respect of the terms of private property owners.
For a coherent classical liberal, freedom of speech has to be total and without any restriction, except for respect of the property rights of others. This means for example that I have the right to prevent a man to paste a poster on the wall of my house. Equally, an editor or a printing group are owners of his/its editorial choices and publications. An industry leader or a director of studies have ultimate ownwership of the policies and values within their own institutes. When you enter the organization, you accept these terms, often under penalty of a fine if the terms are breached. The same happens on a blog or a website. Everyone can issue an editorial policy under which he commits himself to censor this or that purpose judged out of place. In other words, in a free society, we do have the right to say anything within the limits of our agreed upon contractual commitments and of the respect of the right of property.
In the public sphere the situation in not the same. Actually, public space belongs to all, no one can arrogate to itself the monopoly. Public authority has the monopoly of violence but its role is justly to quell violence done to things or persons, and not to initiate itself violence.
There is a simple method for civil society to fight anti-social behaviors and false ideas, including insults, ostracism and boycott. It is the only spontaneously and naturally effective method, which protects the liberal will of the individuals. Still, to want to establish universal tolerance in a coercive way, criminalizing thought and forcing the citizen to adopt a State verity, is aberrant.
Therefore, the conclusion is very simple: legal authorities should never intervene in the arena of free speech for private or public purposes which, even if offending someone, do not physically harm and do not endanger the safety of people or things. Every kind of crime of opinion, every attempt to legislate on the past, on history, or on memory must be abolished.