I am going to quote something which most Americans know by heart and even think is unexceptional:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. — The First Amendment to the US Constitution
It is, however, very exceptional. For example, there is no corresponding freedom of speech in liberal, democratic Europe. There, the European Parliament reserves the right to determine what kind of speech is acceptable and to jail anyone that speaks in an unacceptable way.
Now, you might say that Holocaust denial, for example, is very bad and should not be permitted, not to mention the huge amount of truly vicious racist material available on the Internet. But as Madison and Jefferson realized, laws are blunt instruments and have to be applied with human discretion. All you need is the wrong human and what was intended to protect individuals can be turned to oppress them.
Europe’s response to the racist policies of the Nazis was to criminalize certain kinds of speech. But ironically, the forces that are taking advantage of this are the ones whose intent most closely parallels that of the Nazis — radical Islamists.
In 2008, the EU adopted a ‘Framework Decision‘ to reconcile the treatment of speech-crimes (my phrase) by its various members in regard to “racism and xenophobia.” It went into effect yesterday. In part, it says
1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable:
(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;
(b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material;
(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;
2. For the purpose of paragraph 1, Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting.
3. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.
Now consider what this could mean in practice. Take the Goldstone Report, which concluded — by a combination of falsehoods and unsound reasoning — that the IDF committed war crimes in Gaza, deliberately harming Palestinian Arab civilians in order to ‘collectively punish’ them for supporting Hamas. Although the report itself is simply a badly-done slander produced by the most Israel-hostile circles in the UN and NGOs, it was officially adopted by the UN Human Rights Council.
So the Goldstone Report can be used as ‘evidence’ that publicly defending Israel is a crime under 1(c) above!
Further, a literal reading of the EU decision implies that speech that is ‘insulting’ to a religious group may be ‘inciting to hatred’ and therefore unlawful. Unlike the criterion of inciting to violence, which is somewhat objective, something can be said to be ‘insulting’ if the ‘victim’ of the speech-crime claims to be insulted.
There is no doubt that many Muslims found the famous Danish cartoons insulting, so it appears that the cartoonist and publisher would have also committed a crime. Is there any doubt that they would be prosecuted today?
Note that the truth or falsity of the speech is irrelevant here. If it is construed to be ‘insulting’ or ‘abusive’ then it doesn’t matter.
Europeans sometimes comment on the ‘obsession with individual freedom’ that characterizes the US. I remind them that Fascism was invented there.