We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?
Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”
Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.
The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.
It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)
It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:
[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.
To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”
What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?
There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.