The Freedom to Be Racist?: How the United States and Europe Struggle to Preserve Freedom and Combat Racism
As the subtitle indicates, this book's subject is the ways in which liberal democracies strike the balance between combating racism and preserving freedom. A tension between these things is embodied in the 1948 UN Universal Declaration of Human Rights where Articles 18-20 emphasise freedom of thought, opinion and association, while Articles 7 and 12 forbid discrimination and attacks upon honour and reputation. Erik Bleich examines three main sorts of freedom - of speech, association, and of 'opinion-as-motive' (words or views with the intent of motivating others to commit racist or hate crimes). He charts a range of legal, policy and political resolutions of the balance between freedom and anti-discrimination. In an admirably clear style he presents a discussion of impressive range and detail. His historical and comparative survey will confound anyone with a fixed view about a permissive USA and a restrictive Europe Freedom of speech is the main topic of first half of the book. Bleich notes the wide gap between 'freedom absolutists' who see any restriction on free speech as a first step on a 'slippery slope' towards book burning, and 'antiracists' who favour either censoring or censuring racist speech in the name of limiting the injury caused by it. After noting the limited restrictions on Nazis in the 1930s, Bleich sets out the slow and somewhat uneven development of anti-discrimination legislation since the 1960s. In the past decade, and especially since '9/11', Islam has come to the fore. That has resulted in debates about controls on expressions of religious hatred. He shows how narrowly conceived British efforts to punish expressions of religious hatred have been. In contrast, France has taken a much more expansive role in prosecuting well known individuals such as Brigitte Bardot and Jean Marie Le Pen, though with limited fines; while the controversial 'Danish cartoons' affair was not prosecuted in that country it raised many issues and protests well beyond Denmark about what is justifiable satire on Islam as a religion against words and images that demean Muslims as a group.
Bleich goes on to look at the ways in which European countries have enacted clear legislation against holocaust denial, which he sees as mainly a form of 'symbolic politics'. He looks in detail at the prosecution of David Iriving and notes that there is no evident public sympathy for such deniers or their claim to be 'martyrs' for free speech. He then turns to the North American case. Although the USA has moved to a maximalist position on free speech Bleich shows how this is a relatively recent development and there has been a shift towards that and earlier more restrictive judgements on the extent of free speech. The USA did restrict speech that could be constituted as 'fighting words' in the 1940s; perhaps paradoxically, the movement against restrictions was supported by civil rights campaigners in the 1960s who wanted maximum freedom to assert anti-discrimination claims. But this is not an absolute and, indirectly, racist speech can be punished - not for its racism - but for its capacity to intimidate or incite violence.
The second part of the book turns to freedom of association and opinion as motive. In Europe, Bleich charts the difference between Germany's robust or 'militant' approach to neo-Nazi groups, though with limited success, with Belgium's more effective use of human rights laws to restrict the Vlaams Blok, although the group did reappear under a different name. The USA again provides a case where freedom of association is restricted as little as possible, though there have been some cases against racist organizations for crimes involving violence. Yet paradoxically the USA has been the leader on hate crimes legislation, on the basis of a distinction between speech and conduct; while this is problematic, when opinion is cast as a motive to action, cases have been successful.
Bleich concludes by setting out a framework for deciding how to regulate racist speech and conduct. He calls for attention to context as well as effects and he sets out two principles for doing so - gauging the harm caused by racism and ways of calibrating the response to it. Ultimately, he argues, informed democratic deliberation about these things is the way to determine the balance between competing values. Anyone with an interest in contributing to that will be better informed by reading this book.
The Open University