October 23rd, 2021


Free speech is going to the dogs

Nat Hentoff

By Nat Hentoff

Published May 18, 2016

( Nat collaborated with his son, Nick Hentoff, on this week's column.)

In most of the developed world, criminal "hate speech" laws are common and frequently applied. People are routinely arrested, prosecuted and even imprisoned for offensive speech that provokes racial or religious hatred, or offends members of an ethnic or religious group.

In Canada, Maclean's magazine was put on trial for publishing a series of articles arguing the rise of Islam threatened Western values. In France, the actress Brigitte Bardot was criminally charged with provoking racial hatred for criticizing the ritual slaughter of animals by Muslims. In Germany, France and Canada anyone questioning the Holocaust can be imprisoned.

In a 2008 New York Times column, Adam Liptak reported that the United State is practically the only developed country that prohibits criminal prosecutions based on hate speech. "Under the First Amendment, newspapers and magazines can say what they like about minorities and religions -- even false, provocative or hateful things -- without legal consequence," he explained.

The column also noted that America's tradition of protecting offensive speech is under assault by legal scholars who advocate for a more European approach to regulating free speech.

According to a 2015 poll conducted by the website, a plurality of Americans and a majority of Democrats agree with them. The poll revealed that 41 percent of Americans, including 51 percent of Democrats, support the adoption of a hate speech law that would "make it a crime for people to make public comments intended to stir up hatred against a group based on such things as their race, gender, religion, ethnic origin or sexual orientation." Only 26 percent of Democrats, 41 percent of independents and 47 percent of Republicans opposed passing such a law.

Eugene Volokh, writing in his Washington Post blog, correctly argues that "calls for a new First Amendment exception for 'hate speech' shouldn't just rely on the undefined term 'hate speech' -- they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected, and how judges, juries and prosecutors are supposed to distinguish the two."

Free speech absolutists have argued for years that carving out exceptions to the First Amendment is a slippery slope that will lead to absurd results. Which is exactly what has happened in Europe. The arguably outrageous hate speech prosecutions of the past have been eclipsed by prosecutions that are patently absurd.

A case in point is the arrest last week in Scotland of a man who posted a video of a dog he trained to watch videos of Hitler's speeches and give a stiff-armed salute in response to the command "Sieg Heil!"

The dog in question is a peaceful pug named Buddha, owned by the man's girlfriend. The video depicts the training of Buddha to respond excitedly to the mere whisper of the question: "Do you want to gas the Jews?"

"The clip is deeply offensive and no reasonable person can possibly find the content acceptable in today's society," Detective Inspector David Cockburn told The Telegraph.

Every dog owner knows that if you speak in a high-pitched voice, your pet will react with as much excitement to the question "Do you want some bacon?" as "Do you want to tear my throat out?" Which begs the question whether a satirical video that compares Nazis to a dog's Pavlovian tendency for unthinking repetition can reasonably be regarded as offensive to anyone but Nazis.

The man clearly states in the video that he is not a racist and his only motivation was to "piss off" his girlfriend by turning her adorable little pug into a Nazi. But the thought police are rarely concerned with intent, since preventing offense is their raison d'etre. Giving offense has been the raison d'etre of satirists for centuries and their right to do so should be protected.

"Caricature and satire are (an) expression and barometer of an enlightened, liberal society," writes Gisela Vetter-Liebenow, director of Wilhelm Busch Museum of Caricature and Graphic Arts in Hanover, Germany. "(Y)ou don't have to approve of them, you have the right to be annoyed by them -- but the right to free speech must be defended at all cost."

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance".