Why We Must Defend Free Speech

The modern dispute regarding the boundaries of free speech began with the Nuremberg trials of 1945–1946, in which 24 Nazis stood accused for their roles in the genocide of World War II. The trials established clear ties between the Nazis’ mobilization of the media, which in words and pictures had demonized and blackened the character of the Jews, and the subsequent Holocaust.

Julius Streicher, former editor of the anti-Semitic tabloid Der Stürmer, was among those the tribunal condemned to death.

The judgment against him ran: In his speeches and articles, week after week, month after month, he infected the German mind with the virus of anti-Semitism and incited the German people to active persecution…. Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the Charter, and constitutes a crime against humanity.

In that understanding of the origin of the Holocaust, the racist propaganda of the Nazis resulted in the extermination of the Jews. Without extensive freedom of speech in the Weimar Republic of the 1920s and 1930s, the Nazis would never have been able to carry out their hateful attacks on the Jewish community and may never have risen to power at all; the Holocaust could have been avoided. If evil words beget evil deeds, then forbidding evil words will lead to fewer evil deeds. It is a logic that has no empirical basis; yet that argument continues to drive advocates of wide-reaching constraints on the freedom of speech.

Nazi Germany was ruled by a tyranny of silence. As in the Soviet Union, or in George Orwell’s masterful novel 1984, the verbal hygiene of the totalitarian state was designed to ensure the development of the ideal society. Banning mention of certain things meant they would cease to exist; language (or in this case, silence) became an instrument for creating the world in one’s own image. Thus blinded by Soviet ideology, even Party Secretary Mikhail Gorbachev was at first unable to grasp what was happening as national separatist movements rose up to eventually condemn the Soviet Union to history’s scrap heap.

In the pre-Nazi Weimar Republic, insulting communities of faith—Protestant, Catholic, or Jew—was a punishable offense, commanding up to three years’ imprisonment. Incitement to class warfare or acts of violence toward other social classes was also prohibited by law. The Jewish community often sought the protection of that law to defend itself against anti-Semites, who countered, occasionally with success, with the claim that their attacks on Jews were not incitements to class hatred but were instead aimed at the Jewish “race,” thus not an offense.

Leading Nazis, such as Joseph Goebbels, Theodor Fritsch, and Julius Streicher were all prosecuted by the Weimar Republic for their anti-Semitic speech. Streicher served two prison sentences. But those court cases served as an effective public-relations machinery for his efforts. The more charges he faced, the greater became the admiration of his supporters. On the occasions on which he was sent to jail, Streicher was accompanied on his way by hundreds of sympathizers in what looked like his triumphal entry into martyrdom. In 1930, he was greeted by thousands of fans outside the prison, among them Hitler himself. The German courts became an important platform for Streicher’s campaign against the Jews.

Aryeh Neier, who fled the Nazis with his parents in 1939 and later became a well-known human-rights activist in the United States, invoked the wrath of many when in 1977, as leader of the civil rights organization the American Civil Liberties Union (ACLU), he defended the right of a group of Nazi sympathizers to march on the Illinois town of Skokie, home to many East European immigrants who had survived the Holocaust. Years later, Neier reflected that the ACLU’s argument for defending even Nazis’ freedom of speech had come to be widely supported in the United States. He felt that was because after they won the right to demonstrate, the Nazis failed to gain much attention, and the movement died soon afterward. The story serves as one illustration of the fact that the most effective means of combating Nazism was to defend the freedom of speech of the Nazis themselves.

“I could not bring myself to advocate freedom of speech in Skokie if I did not believe that the chances are best for preventing a repetition of the Holocaust in a society where every incursion on freedom is resisted,” Neier wrote in his book Defending My Enemy. Neier points to several examples during the Weimar Republic when efforts to restrict the free speech of the Nazis were counterproductive. In 1925, Adolf Hitler was prohibited by Bavarian authorities from speaking in public. The Nazis reacted by producing a poster of Hitler, with his lips sealed with tape on which was written, “Alone among 2 billion people of the world, he is not allowed to speak in Germany.” That propaganda image so enhanced Hitler’s popularity that the authorities felt obliged to lift the ban.

The widely touted claim that hate speech against the Jews was a primary cause of the Holocaust has no empirical support. In fact, one might as well argue that what paved the way for the Holocaust was the ban on hate speech, insofar as it handed Streicher and other Nazis a glorious opportunity to bait the Jewish community in the bully pulpit of the courtroom. For supporters of democratization of the Weimar Republic, a far more effective strategy would have been to address Nazi propaganda in free and open public debate. But in Europe between the wars, confidence in free speech was running low. What the Weimar government failed to do was to safeguard its society against political violence, particularly politically motivated murders. Those who spoke out against Hitler and his supporters were not protected or defended; instead, they were abandoned to the mercy of Nazi violence, and in that climate, many elected to remain silent. Streicher’s and other Nazis’ Jew-baiting occurred in a society with no real freedom of speech, thus no possibility to counter the witch-hunt against the Jewish community. As Neier wrote, the history of the Weimar Republic “does not support the views of those who say that the Nazis must be forbidden to express their views. The lesson of Germany in the 1920s is that a free society cannot be established and maintained if it will not act vigorously and forcefully to punish political violence.” He continued: “Violence is the antithesis of speech. Through speech, we try to persuade others with the force of our ideas. Violence, on the other hand, terrorizes with the force of arms. It shuts off opposing points of view.” That is the core issue. Words might offend or shock, but they can be countered in kind. Words are a democracy’s way of dealing with conflict.

Agnès Callamard, executive director of the human rights organization Article 19, made a speech in 2006 that confronted that issue. She pointed out that constraints imposed on free speech with the intention of safeguarding minorities against hatred more often than not resulted in the most controversial voices of the minority being either silenced or imprisoned.

“Experience shows that restrictions on freedom of expression rarely protect us from abuses, extremism, or racism,” she said. “They are usually and effectively used to muzzle opposition and dissenting voices, silence minorities, and reinforce the dominant political, social, and moral discourse and ideology.”

As Neier wrote in the quarterly Index on Censorship, “Freedom of speech itself serves as the best antidote to the poisonous doctrines of those who try to promote hate.” And yet, 14 European nations have laws criminalizing Holocaust denial, and many more have adopted legislation against speech inciting hatred.

On December 10, 2005, International Human Rights Day, I took part in a panel discussion organized by Amnesty International and the Danish Institute of Human Rights under the banner “Victims of Free Speech.” That title was not intended as a joke. A number of those who took part believed that the Muhammad cartoons had left in their wake a trail of victims: the victims of free speech.

I found myself wondering for whom the human rights community would take up the cudgels next—victims of the welfare state, perhaps, or of liberal democracy? Victims of free education? Of gender equality? Or maybe even victims of religious freedom? When I suggested during the debate that by and large, in a society based on the rule of law, there could only be victims of crime, and that the idea that we could discuss “victims” of citizens who were exerting their statutory rights was therefore nonsense, I was answered with anger. An official representative of the Danish Union of Journalists branded the 12 Muhammad artists as “useful idiots for Jyllands-Posten.” At the time, several of the artists had been forced into hiding by death threats, but even their own professional organization didn’t mention their plight.

I pointed out that “victims of free speech” in the West— if we were to use that phrase—had to be those who had been murdered or exposed to violence because of their speech: people like Ayaan Hirsi Ali, Theo van Gogh, and Salman Rushdie. Five years on, we might add names such as Seyran Ates of Germany, Robert Redeker of France, Ehsan Jami of the Netherlands, Shabana Rehman of Norway,

Lars Vilks of Sweden, and Kurt Westergaard of Denmark, as well as many other Europeans. But that opinion was loudly booed by the progressive audience.

When I expanded the list of “victims of free speech” by adding dissident voices in dictatorships and others persecuted by totalitarian regimes, I was told that those were not victims of free speech, but of the arbitrary powers of the totalitarian state. Clearly, the audience and most of the panel wished to limit the business of “victims of free speech” to people who had taken offense to the drawings published by Jyllands-Posten. It was amazing to me that Amnesty International, the Danish Institute for Human Rights, the writers association PEN, and a former Danish minister of justice who also appeared on the panel apparently had lost all sense of proportion and had completely failed to distinguish between words and deeds.

In addition to his opinion that free speech was the best way to fight racist ideology, Poul Henningsen, the Danish author and freethinker, also opposed public decency laws that banned erotic literature and pornography. On that he won: Denmark became the first country in the world to lift a ban on pornography in the late 1960s. And although he was a Conservative, Denmark’s justice minister Knud Thestrup, who lifted the ban, had a very similar argument to Henningsen’s: the state should not dictate the morals of the individual, nor should it decide what he or she should have the right to read.

Henningsen also argued that law is temporary, a passing convention that at any time could be superseded by a new reality. Exiled Russian writer Aleksandr Solzhenitsyn provided a prominent example some four decades later: when communism collapsed, Solzhenitsyn returned to Russia, was honored by the state, and saw his work republished after having been banned for almost 30 years. Václav Havel was elected president of a democratic Czech Republic after multiple terms of imprisonment. Nelson Mandela is a third example, and the shifting constraints on permitted speech aren’t only a feature of dictatorships. The West features countless examples, as more liberal views of sex have prevailed. Vladimir Nabokov’s novel Lolita was banned in France and Great Britain; John Steinbeck’s The Grapes of Wrath was banned for a while in California. D.H. Lawrence’s Lady Chatterley’s Lover, James Joyce’s Ulysses, Allen Ginsberg’s Howl, William S. Burroughs’s Naked Lunch, and almost everything by Henry Miller are examples of works subjected to censorship in the United States on the grounds of alleged pornographic content. By 2010, all were freely available, many hailed as major world literature.

That change raises an interesting issue. On many occasions, proponents of a ban on an erotic book will claim that it is an inferior work, filth rather than literature, and that a ban is therefore a reasonable course of action. By contrast, opponents of a ban often say that it is a work of literature; it is art; it is a good book; and it should therefore not be banned. One of my predecessors as culture editor of Jyllands-Posten, the literary critic Jens Kruuse, defended a novel by Agnar Mykle from censorship in 1957 by employing that line of reasoning: “A writer may concern himself with issues deemed indecent by the law in such a way as to raise them up out of the realm of indecency and onto a higher level.”

In other words, artistically acceptable speech should be granted wider freedom than speech the literary elite did not much care for. Thus, Norway’s Supreme Court acquitted Mykle on all charges of pornography because of the artistic merits of his book. But while Mykle’s supporters were still celebrating their victory at a famous Oslo watering hole, the same court ruled in favor of confiscating and banning U.S. writer Henry Miller’s autobiographical novel Sexus, on the grounds that the work was pornographic and devoid of artistic quality. Half a century later, literary experts would be inclined to highlight Miller’s art to the detriment of Mykle’s.

Anders Heger, a Norwegian publisher and author of a biography on Agner Mykle, believes that those cases continue to resonate today, when fundamental issues of tolerance and freedom within a democracy have been rendered topical by the Rushdie case and the Cartoon Crisis: In legal, literary, and ideological terms, they are linked by the same principle, which says that freedom is more significant for such thoughts as are deemed ‘worthy’ than those which are not. Put differently: what I find to be art must be protected, and I am indifferent to all else.

Heger calls that a pitiful corruption of Voltaire: “I agree with what you say, and I will defend it regardless of what it may cost others.”

FLEMMING ROSE is a Danish journalist, author, and senior fellow at the Cato Institute, Washington, D.C. Rose served as foreign affairs editor and culture editor at Jyllands-Posten He is an international advocate for freedom of speech and regularly travels around the world to speak on the subject. In 2015 Rose was awarded the prestigious Publicist Prize from Denmark’s national press club and received the Honor Award for defending free speech from the Norwegian Fritt Ord Foundation. His website is www.tyrannyofsilence.net.

Excerpted from The Tyranny of Silence by Flemming Rose. Copyright © Cato Institute, 2014. $14.95. ISBN-10: 1939709997, ISBN-13: 978-1939709998

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