by Erik Bleich. New York: Oxford University Press, 2011. 224pp.Cloth $99. ISBN 9780199739684. Paper $24.95.ISBN: 9780199739691.
Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kyle.Kreider [at] wilkes.edu.
One of the most widely repeated lines of Supreme Court First Amendment jurisprudence is Justice Robert Jackson’s declaration that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act” (West Virginia Board of Education v. Barnette, 1943, at 642). This statement, coupled with a long and rich history of Supreme Court decisions upholding the free speech rights against majority attempts to limit it in order to protect society, have produced Americans who are largely supportive of the libertarian perspective of the First Amendment. In this excellent and thought-provoking book, Erik Bleich encourages us to rethink the "fundamental dilemma for liberal democracies: how can we balance the core values of preserving freedom while limiting the harmful effects of racism?" (p.3).
In examining how the western world had responded to racism, Bleich divides his book into two parts: freedom of expression (Chapters 2-4) and freedom of association and opinion-as-motive (Chapters 5-6). However, Bleich introduces the book by carefully and persuasively articulating how and why we need to balance freedom against the important goal of protecting society from "egregious and harmful racism" (p.5). Unfortunately, over the past few decades we have seen free speech absolutists and racist speech regulators retreat into their respective corners, with the result being that democratic citizens have not truly been exposed to a rich and open debate where the "trade-offs are fully recognized" (p.5).
In the Introduction, Bleich also explains the four major empirical conclusions regarding protecting speech while combating racism. First, the trend in western democracies since 1945 has been to curb racism at the expense of limiting some freedom of speech. Second, the racism curbing trend has not resulted in a slippery slope of other speech restrictions. Third, the United States has "contradicted the overarching trend in one fundamental way: it has actually expanded freedom of racist expression. And lastly, to the surprise and chagrin of many, the United States has actually been "at the forefront of limiting freedom in crucial ways" (p.6, emphasis in original).
Armed with these important observations, Bleich turns to comparing Europe and the United States on these important issues. In Chapter 2, Bleich examines "European Restrictionism and Its Variations." While free speech absolutists view Europe's racist speech restrictions as particularly onerous and [*224] unjust, Bleich thoughtfully examines the "broader historical context" in which statutes punishing incitement, provocation, defamation, and other discriminatory-based expression were debated and formulated across Europe. Bleich characterizes European restrictions as a slow but steady crawl that originated after World War II but that "most countries' key laws were enacted in the 1960s and 1970s" (p.41). While these laws serve a symbolic function, "most countries have deployed their laws against a variety of racist speech and have recently enforced stiffer penalties for repeat offenders" (p.42).
To the American reader, Bleich's two explanations for why Europe and the United States differ greatly in restricting racist speech are particularly insightful. First, Bleich argues that the "European judicial systems place greater emphasis on the values of human dignity, honor, civility, and community than does the United States, which is grounded in a more individual rights-based framework" (p.42) More importantly, Bleich argues that the context in which these laws were passed is important. For example, while Great Britain gives less weight to dignity and honor than France or Germany, it was among the first to pass racial hatred laws in the 1960s and to expand them to religious hatred in the past decade. The reason for the laws seems to be "the perceived rise in anti-Semitic or anti-immigrant speech" in the 1960s and the increase of anti-Muslim speech following 9/11. In short, context matters.
Perhaps the most curious form of racist speech restriction is the "Holocaust denial" laws found in many European countries, most notably in Germany and France. Defenders of free speech argue that such laws are inconsistent with the principles of liberal democracy because they simply deny individuals the right to question "a state-enforced 'official history'" (p.45) and place criminal sanctions on pure speech. Here again, context matters, as Europe has a unique history with Hitler and fascism. Interestingly, in Chapter 3, Bleich points out that these laws have not simply been used for symbolic politics; rather, "these laws have indeed been applied in a variety of countries and with slowly increasing sentences" (p.51). Furthermore, the dire consequences of strict enforcement, as predicted by free speech supporters have never materialized.
In Chapter 3, Bleich examines the unique modern American free marketplace of ideas perspective that biases against any state regulation of odious speech. While it may be tempting to read the Free Speech Clause as overly protective of speech, the fact remains that "the Court took several decades to arrive at its maximal free speech position" (p.63). In other words, our tradition of protecting virtually all forms of speech to, no matter how offensive, is only a fixture of First Amendment doctrine since the late-1960s. For example, while the current Supreme Court would never uphold a conviction for verbal attacks on racial, ethnic, or religious minorities like we perhaps might see in Europe, the Court did exactly that in 1952, in Beauharnais v. Illinois. With the change in the Court's composition, however, the Court moved to a more speech protective mindset.
Part II of The Freedom to be Racist investigates how the western world has responded to the freedom of association claims of racist or hateful groups [*225] (Chapter 5) and how countries punish racial discrimination and hate crimes (Chapter 6). In Chapter 5, Bleich outlines the pros and cons of various approaches to freedom of association by examining the associational freedoms of the United States, Belgium, and Germany. The United States protects the freedom of association as implicit in the First Amendment but Belgium's constitution explicitly mentions association as a "core right." However, Belgium has specifically targeted the far-right Vlaams Blok on the grounds that it violated Belgium's antiracism laws. Germany has an "established track record of unapologetically banning extreme right-wing associations, and it has used evidence of racism to justify such bans in recent years" (p.86).
Seeking to provide some answers to why these three countries have different laws and practices regarding freedom of association, Bleich once again points to the importance of the "historical context within each country" (p.104). Essentially, the path that each country took was dependent on specific "pressure points at particular historical moments" (p.104). Interestingly, Bleich concludes by noting that even in Belgium and Germany, liberal democracies can remain committed to freedom of association "while simultaneously excising the most virulently racist organizations from their society" (p.105).
Given the United States’s reticence to punish racist speech, it is logical to think that Americans would also be opposed to tacking on longer sentences for those who singled out their victims on the basis of racial, ethnic, sexual, or religious identity, commonly referred to as hate crimes. However, the United States “was a leader in making racial discrimination and hate crimes illegal” (p.107) and it is this paradox that Bleich addresses in Chapter 6. After wrestling with the many logical inconsistencies and perceived double standards, Bleich correctly answers the “why?” question. While the Supreme Court has “monopolized decision-making in the realms of speech and association, it has largely relegated antidiscrimination and hate crime laws to state and federal legislatures” (p.128). In this context, the civil rights movement has pressed legislatures to enact hate crime statutes, many of which were passed following unfortunate, high profile hate crimes that created public pressure for change.
In a must-read conclusion, Bleich attempts to answer how much freedom racists should enjoy as well as how societies should make these decisions. To help answer the first question, Bleich proposes that individuals should reach conclusions based on the interaction of three factors: "an understanding of the context of the decision; an assessment of the likely effects of particular policy choices; and a reflection on key principles" (pp.133-34). As mentioned throughout the book, context is important because it helps to explain why a nation has adopted a particular policy and how it seeks to balance competing public values. Through citing numerous scholars to help make his point, Bleich encourages the reader to try to understand the rich context in which decisions are made.
While free speech absolutists and supporters of racist speech regulation will stand on principle, Bleich maintains that we should truthfully examine the "concrete effects of particular policies" (p.141). To this end, we should examine [*226] policy effects "in light of carefully considered information from a wide range of cases" (p.142). For interested researchers, systematic data on basic information needed to assess the effects of such laws, e.g., complaints, investigations, indictments, prosecutions, and convictions for racist speech, are simply lacking.
As for the third factor, most modern societies are faced with a choice: uphold freedom of speech or fight racism. The dilemma is to determine "where, when, and why one value trumps another" (p.145). Another option is to identify where freedom should prevail and where fighting racism is more important. To those readers looking for easy answers, this is not the chapter to read. Each society will have to answer the principles question for itself.
In terms of how societies should answer this important speech versus fighting racism question, Bleich cites the importance of democratic legitimacy, cultivated by a rich, public deliberation. Frankly, many individuals do not know where they stand on this important issue, so encouraging a free and open debate is crucial. While individuals debate, entrusting legislatures to make the final decisions on these matters is important for ensuring the democratic legitimacy of policies.
American's politics are polarized but with respect to the issue of free speech vs. racist speech regulation, the issue seems to be a continental divide: Americans tend to be pro-free speech and Europeans seem more inclined to support restrictions on racist speech. Like other political issues, it is often easy to dismiss or disparage the opinions and policies of, in this case, other nations. However, Bleich presents a compelling case for us to rethink this issue and learn to understand why each society has chosen its particular policy. Bleich's contribution to comparative speech analysis is impressive and his ideas should be given great weight in this important debate.
Beauharnais v. Illinois, 343 U.S. 250 (1952).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1942).
Copyright 2012 by the Author, Kyle L. Kreider.