Abstract
The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle.
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Notes
The Anglo-Saxon constitutional label of “free speech” (or “freedom of speech”) is used interchangeably with continental “freedom of expression”.
“Hate speech is expression whose primary content is derogatory references to a particular (oppressed) group, or a declaration that members of the group should be attacked, expelled, or otherwise ill-treated” (p. 86 in [37]). “Hate speech describes a problematic category of speech and related freedoms, such as freedom of association and assembly, that involves the advocacy of hatred and discrimination against groups on basis of their race, color, ethnicity, religious believes, sexual orientation, or other status” (p. 55 in [38]).
The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224 of Division 1 of the Illinois Criminal Code, III Rev. Strat. 1949, c. 38, 9471. Consequently, he was fined $200.
For the account of the racial tensions in Chicago see [39].
R.A.V., a petitioner, is a teenage who was charged after burning a cross on a lawn of an Afro-American family [5].
Extract from the Opinion of Justice A. Scalia.
Compare to the famous statement of Justice Harlan in [40]: “one man’s vulgarity is another’s lyric”.
As the amicus curiae brief put it, “The purported limiting construction adopted by the Minnesota Supreme Court is necessarily coloured by its view that ‘[t]he burning cross is itself an unmistakable symbol of violence and hatred based on virulent notions of racial supremacy’. Other amici curiae briefs were filed by the Association of American Publishers and the Centre for Individual Rights.
Justices Gaukur, Jörundsson, Hall, and Geus.
Henri Philippe Benoni Omer Joseph Pétain, generally known as Marshal Pétain (Maréchal Pétain), is a highly contradictory figure of the twentieth century French history. On the one hand, he was enjoying the reputation of the World War I hero (particularly, after the Battle of Vedun). On the other hand, he is notoriously known as the Chief of State of Vichy France (Chef de l'État Français), responsible for the surrendering of France to Germany and execution of the authoritarian regime during World War II.
See Joint Dissenting Opinion of Judges Foighel, Loisou and Sir John Freeland (they advocate a broader margin of appreciation for the state).
Just to give a few examples of this impressive caseload which practically annually descends upon Strasbourg since the 1990s:
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conviction for disseminating propaganda against the integrity of the State in [41, 42, 43];
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conviction of a member of a trade union for incitement to hatred following the publication of criticisms of State policy in south-east Turkey in [44];
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conviction of the editor of a periodical for disseminating propaganda against the indivisibility of the State in [45];
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writer’s conviction for inciting the people to hatred and hostility after he wrote the articles strongly criticizing the Turkish authorities’ policy in [46];
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Conviction of members of several associations for incitement to hatred, via press, on the basis of distinction between regions in [47].
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“Nous en avions tous rêvé, le Hamas l’a fait” (parodying a famous marketing slogan “We have all dreamt of it…Sony did it”) .
“The best test of truth is the power of the thought to get itself accepted in the marketplace of ideas” [22].
For a concise summarization of the main philosophical justification of the right to free speech see pp. 1532–1535 in [48]. Rosenfeld distinguishes: 1) justification from democracy; 2) justification from social contract theory; 3) justification from the pursuit of the truth; 4) justification from autonomy. For a thorough account of philosophical arguments see a classical monograph [49].
The law is deemed to be constitutional if it can be shown that the language it prohibits poses an imminent danger (in a contemporary version, an imminent lawless action). Explained below with reference to the case-law. See also infra note 19.
For a critical account of the market analogy see also [50].
For instance, under EU Law, very large market shares raise a presumption that a firm is dominant except for a few cases. Similarly, tying one product into the sale of another can constitute an abuse which is not peculiar to American antitrust law. The most famous example here is a recent Case T-201/04 Microsoft v. Commission (which led to an eventual fine of $497 million for including its Windows Media Player into the Microsoft Windows Platform).
“[…] whether the words […] bring the substantive evils that the US Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such as a hindrance to its effort that their utterance will fight, and that no Court could regard them as protected by any constitutional right.”
The genetic predecessor of clear and present danger is the bad tendency test, established in the 1868 British case The Queen v. Hickly. The old case left larger margin of appreciation to the state. Some scholars argued that Holmes just re-worded bad tendencies. Ruining those illusions, Holmes retroactively responded with explicit formula in Abrams v. US [22] (referred supra in the context of marketplace of ideas).
For the accounts of the history of free speech as idea genealogically linked to the matrix of English law, see [51]. For a detailed examination of the English approach to the freedom of speech before the American Revolution, see [52]. The leading monograph on the history of free speech in the US is [53]. For accounts that disagree with Levy, see [54].
The tendency of the recent years is to trace back the principle of human dignity to the Antiquity, suggesting that Ancient dignitas was constitutionally “levelled up” beyond hierarchy and, therefore, it cannot be deemed exclusively the offspring of the constitutionalism in the recent 60 years. See e.g. [55, 56, 57].
Initially Foucault formulated his ideas about the relationship between Ancient Greek rhetorical practices and perception of truth during his lecture at the Collège de France, entitled “Le courage de la verité” at the beginning of 1980s. See [58]. He then developed his insights on the Ancient categories of free speech at the University of California at Berkeley. For the perhaps most complete account see [27]. The attempt to systemize those lectures was partially undertaken in 1983 (Discourse and Truth: the Problematization of Parrhesia. (Six lectures given by Michel Foucault at the University of California at Berkeley, October–November 1983). Nonetheless, Foucault is definitely not the first scholar who launched the research in this fundamental domain of Ancient rhetoric. Perhaps, the first reanimation of the described concepts was provided in the 19th century by [59]. The bibliography on parrhēsia and isēgoria also includes the important findings of the Italian researchers: [60, 61]. See also a particularly illuminating recent analysis in [62]. Further on, I also ground my views on the above-mentioned book of Luigi Spina [61], still not translated in English.
One can also recall that for the Athenians parrhēsia was rather a characteristic of their citizenship than a right. The contemporary right to free speech is perceived as a negative right, i.e. a right from censorship. However, the attribute-to-citizenship character of parrhēsia and isēgoria do not deprive them of the potential in terms of rights. Otherwise we should assert that the Greeks had no concept of rights at all. See [63].
Recently Eric Heinze eloquently and ironically put this point of mutual misunderstanding as follows: “European conferences on hate speech follow a similar pattern. A Few Americans make impassioned speeches about the values of freedom and democracy. The Europeans dutifully listen and applaud. Then come tea and biscuits, where the pros and cons of various positions are exchanged with tepid enthusiasm. All delegates are then thanked for having attended an event that ‘will surely provide food for thought’. The Europeans depart with the same views they held when they arrived; and the Americans leave crestfallen from a missionary venture that failed to convert a single soul.”—p. 182 in [66].
The discussion on the illocutionary effect of hate speech is rooted into the speech acts theory, introduced by JL. Austin [How to Do Things with Words] who elaborated the theory of perfomatives. The concept was further essentially developed by J.R. Searle [Speech Acts]. For an example of illocutionary effect analysis in the context of hate speech see [67].
The legal essence of truth in Western culture is profoundly treated in a series of writings by an Italian scholar, Francesco Cavalla. In particular, he inquires if in a post-metaphysical era we can back-manoeuvre to the metaphysics of contextual truth (opposed to the Platonic-only-truth), i.e. how can we satisfy minimum requirements of rationality and yet not fall either in pure subjectivism or in essentialist dogmatism. He regards legal process as the place where the logos (and ultimately, truth) emerges. See [68] The Foucault’s doctrine of the regimes of truth may be also helpful for the historical deconstruction of free speech epistemologies, considering the evolution of different theories of truth (correspondence, coherence, constructivist, consensus, pragmatic, minimalist (deflationary), and perfomative) from Thomas Aquinas to Heidegger. For a deeper Foucault’s account of truth see [69] (in particular, 82-85 on the relationship between truth and parrhēsia).
Following Foucault, I refer to mathesis here as to a rigorous episteme suitable for enabling cohesion of a discourse and thus uniting a community of its followers. The classical notion of mathesis goes to the epoch of Leibniz and Descartes, who developed the universalizing concepts of absolute truth as a category more perfect than suggested by the natural languages and science. Mathesis, therefore, creates a vector for a mind enquiring into the absolute truth and universal language (characteristica universalis).
“Two concepts of Liberty” was Berlin’s inaugural lecture as Chichele Professor of Political and Social Thought at Oxford University. An essay with the same title was first published in 1958.
The critique of parrhēsia also traces back to the Antiquity. One can recall, in particular, Plato’s pejorative reference to parrhēsia in Republic as characterization of the bad democratic constitution where everyone has the right to address her \ his fellow citizens and to tell them anything—even the most stupid or dangerous things for the city (Πόλις). The European jurisprudence on hate speech is manifestly supportive of such critique towards absolute speech.
The pure social convention seems to exist with regard to racism and anti-Semitism, whereas others grounds for the hate propaganda may vary (e.g., homophobic hate speech).
It should be understood as the connotation of Πολιτεία with its inherited value of the assembly of citizens as a part of the political process. All the expressions are valued.
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Acknowledgments
The author owes his gratitude for the invaluable remarks to Michel Troper (Université Paris X), Wojciech Sadurski (University of Sydney), and to his excellent reviewers. The usual disclaimer applies.
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Belavusau, U. Judicial Epistemology of Free Speech Through Ancient Lenses. Int J Semiot Law 23, 165–183 (2010). https://doi.org/10.1007/s11196-010-9147-z
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DOI: https://doi.org/10.1007/s11196-010-9147-z