Ian Buruma

Acts of terror can inflict terrible damage. But they cannot destroy an open society. Only those who govern our democracies can do that, by shrinking our freedoms in freedom’s name.

Shinzo Abe, Japan’s right-wing nationalist prime minister, does not need much encouragement to tighten up secrecy laws, give more powers to the police, or make it easier to use military force. The grisly executions of two Japanese citizens caught by ISIS terrorists in Syria have provided precisely the encouragement that Abe needs to pursue such measures.

But Japan has never been seen as a bastion of free speech, nor did it ever make great claims to be. France does. That is what the demonstration of solidarity in the face of last month’s terrorist attacks in Paris was surely all about. France, of all countries, would avoid the trap that snared the other great Western republic claiming to be a beacon of freedom in the world.

Fear of terrorist violence after the 9/11 attacks did more damage to freedom in the United States than the suicidal murder of thousands of its citizens. Because of that fear, Americans allow themselves to be spied on indiscriminately by their own government, and permit terrorism suspects to be tortured and locked up indefinitely without trial.

France, like most other countries in the European Union, already has laws that ban hate speech. You cannot legally insult people on the grounds of their race, beliefs or sexual orientation. 

And in France, as well as in some other countries, one can be prosecuted for denying the Holocaust and other historical genocides.

President François Hollande, who is not a right-wing nationalist like Abe, now wants to strengthen those bans. He has proposed new laws that would make online entities like Google and Facebook responsible for any “hate speech” posted online by their users.

Former EU heads of state have also backed a proposal from European Jewish leaders to criminalize in every EU country not only anti-Semitism and genocide denial, but also “xenophobia” in general. Few people would wish to defend expressions of xenophobia or anti-Semitism. But is it really wise to use the law to ban opinions?

First of all, such laws, if enacted, are unlikely to reduce the risk of terrorist acts. Banning the expression of opinions will not make them go away. They will continue to be expressed, more secretively perhaps, and as a result become even more toxic. And the social and political basis for terrorism, in the Middle East and elsewhere, will not vanish just because of a public ban on xenophobic speech.

But there is a larger danger in using the law to police what people think. It can stifle public debate. That danger underlies the view, still operative in the United States, that opinions, however obnoxious, should be freely expressible, so that they can be opposed by counterarguments.

It would be naive, of course, to believe that religious or political extremists are interested in an exchange of views. But inciting violence is banned in the U.S. as well. The First Amendment of the Constitution does not protect freedom of expression when it can be shown to create a risk of imminent violence.

Xenophobic views, or the denial of genocide, are repellent, but do not necessarily result in such a threat. In most societies, including the U.S., the public expression of such opinions is limited by a rough consensus on what is socially respectable. This consensus changes with time. It is up to editors, writers, politicians and others who speak in public to shape it.

Cartoonists, artists, bloggers, activists and comedians sometimes like to challenge the consensus of respectability. Some of these challenges might cause outrage (that, after all, often is the point). But as long as they do not promote or threaten violence, it would do more harm than good to ban them by law. Allowing the government to decide which opinions are permissible is dangerous not just because it smothers debate, but also because governments can be arbitrary or self-serving.

It would be useful in the current climate of fear to recall a famous hate-speech case in the U.S. In 1977, the American Nazi Party planned to stage a demonstration in Skokie, a suburb of Chicago with a large Jewish population. A local court, prompted by shocked and fearful public opinion, decided that the display of swastikas, distribution of leaflets, and the wearing of Nazi uniforms should be banned. Such a demonstration, it was quite plausibly argued, would be an insult to a community that included Holocaust survivors.

But the ban was contested by the American Civil Liberties Union as an infringement of the First Amendment. The argument of the ACLU lawyers, most of whom were liberal Jews, was not based on any sympathy for Nazi symbols or views. Their argument was that if you allow the government to ban opinions you hate or despise, you weaken your right to contest a similar ban on views with which you might agree.

Freedom of speech, in other words, should mean freedom of hateful speech, too, as long as it does not threaten or promote violence. Most European governments already take a stricter view of public insults than the U.S. Constitution does. It would be a great mistake to add even more restrictions. Terrorist attacks are doing enough damage, in lives and property. There is no reason for governments to make things worse by tampering with their citizens’ liberties.