The Rise of ‘Hate Speech’ Policing in Europe

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Free speech is increasingly under attack on college campuses — but if you think it’s bad here, look across the pond to Europe. Authorities over there are increasingly cracking down on so-called “hate speech” — a label that’s been applied to speech critical of Islam, homosexuality, and more. Paul Coleman, a British attorney who’s had a front row seat to this concerning trend, explains the origin of these hate speech laws and gives his assessment about the future of free speech. Read the interview, posted below, or listen on the podcast:

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Daniel Davis: We are joined now over the phone by Paul Coleman. He serves as executive director of ADF International, which is the international branch of the religious liberty law firm Alliance Defending Freedom. He’s also author of the book “CENSORED: How European ‘Hate Speech’ Laws Are Threatening Freedom of Speech.”

Paul, thanks for joining us over the phone.

Paul Coleman: Thank you very much for having me on the show.

Davis: So Paul, you write in your book about the rise of “hate speech” laws in Europe. Those words, “hate speech,” [are] in quotes throughout the book. First off, is hate speech something that can actually be defined?

Coleman: I put “hate speech” in quotes through the book, and a lot of other people writing on the issue of hate speech do the same, because we don’t accept that the term itself is understood or definable.

When it comes to deciding what is hate speech and what should be considered free speech, the reality is that that is a line that is impossible to draw.

So we see a lot of people talking about hate speech, but when we actually press them on what they mean by it, then they come up with all sorts of different definitions. And a lot of the time these definitions are circular in nature. So hate speech is speech that is hateful and so forth.

So one of the biggest problems with hate speech laws is we’re trying to criminalize something that we can’t even define.

Davis: Right. So what kind of speech restrictions are actually being passed in Europe?

Coleman: We have laws that ban, criminalize things like insult, things like offense, things like wounding religious feelings, all these sorts of terms.

Every country in Europe has adopted criminal hate speech provisions. They don’t all call them hate speech laws, but that is what they are. And to varying degrees, they all criminalize what people can and can’t say.

Davis: In particular, there’s a controversy these days over speech against Islam, speech against LGBT activity. What kinds of penalties are we seeing for speech on those matters?

Coleman: We have within Europe … about 800,000,000 people and, obviously, the speech that these people create each and every day is huge, particularly when we think of the digital age and we think of how much speech is uploaded every minute, every second to YouTube, to Twitter, Facebook, and so forth.

When it comes to policing speech of this many people, of course it’s impossible to do that well or accurately. So the law enforcement agencies across Europe often zoom in on politically-charged topics. And we see that in particular with the issues that we’ve mentioned.

We see, for example, pastors from churches or even Catholic cardinals and bishops being investigated by the police for homilies or sermons that talk about the biblical view of sexuality and homosexuality, and that sort of thing.

We see politicians, members of the media investigated by the police, arrested and fined for speaking about issues such as immigration or radical Islam. And we often see these politically-charged topics, these are the things that form the subject of police complaints and investigation.

Although we see people arrested and sometimes imprisoned, the reality is, a lot of the time what we’re seeing is police arresting and investigating these people and then the cases don’t really go anywhere. But in many ways, the process of the whole thing is the punishment. And for everyone else looking on, they see what’s happening and then they self-censor themselves for fear of the same thing happening to them.

Davis: You mention in the book, in your home country of Great Britain there’s a long history of public preaching on streets and you note that in recent years more and more street preachers are being arrested, almost routinely.

Can you expound on why the change? Why was this something that was accepted for so long and now suddenly is … Was there a law that was passed or was there some legal change?

Coleman: I think what we see with the increased censorship and the use of hate speech laws in Europe and the U.K. and elsewhere is just part of a wider trend that we see across the West, of what people would refer to as, for example, political correctness or just this increased sensitivity of what we can and can’t say.

In the past, in the very recent past, it was generally accepted that people would say things that we didn’t like to hear, that we disagreed with, that we found offensive, and they had every right to do so. And there’s been a change even in the last few years where now it’s essentially being stated, “I don’t like this.” Or, “This offends me. And, therefore, it should not be allowed. Therefore it should be banned.”

So, with the street preachers with this long tradition of street preaching in the U.K., we do see street preachers routinely arrested by the police.

This is because of an oversensitivity on behalf of the police and the public, that they hear something that they think is offensive or they subjectively think others don’t want to hear and then their knee-jerk reaction is, “Well, therefore, it must be illegal. Therefore, we have to do something.”

In all of these cases, these street preachers, they are released sometime later. If they’re charged, they are ultimately acquitted.

Many of them have sued the police successfully for wrongful arrest. And so, as I say, it’s rare that these hate speech cases lead to people actually doing real jail time. But for everyone else looking on, they fear getting dragged to court, they fear police knocking at their door. So there’s an increased culture of censorship in Europe as a result.

Davis: What about the use of transgender pronouns? That’s something that’s been increasingly under debate here in North America, and Canada actually passed a law requiring people to use transgender pronouns. It’s something that psychologist Jordan Peterson was very publicly upset about.

Are you seeing a similar trend in Europe and are people suffering legal penalties yet for refusing to participate in those pronouns?

Coleman: Interestingly enough, Europe has not yet, at least not en masse, gone down that route. I’m sure it will follow and I’m sure this will come, but for whatever reason, right now we’re not seeing a lot of cases on that issue.

Now for certainly, talking about issues of transgenderism, gender identity, these sorts of topics is highly controversial and we’re seeing people, what they’re saying, taken off social media, no-platformed, and what have you.

But as of yet, we’ve not seen, or at least I’ve not seen, criminal investigations and that sort of thing for using the wrong pronoun. But it’s something that’s a bit of an outlier in Europe. I expect Europe will soon catch up with Canada and elsewhere if the current trends continue.

Davis: Is there a country in Europe that’s more open to free speech on these issues that kind of stands out? And if so, what are they doing right and what are they doing differently?

Coleman: I don’t think there’s any country in Europe, or indeed outside the U.S. in the West, that stands out as now having a strong robust defense of freedom of speech.

Interestingly, as we look at the last century, the 20th century, the position of the U.S. and many countries in Europe was quite similar. But over the course of the 20th century, the U.S. went in a direction more and more in favor of freedom of speech in case law developed by the U.S. Supreme Court. And countries in Europe went in the exact opposite direction, going more and more in favor of censorship.

So today, as we look across the entire continent, there are very few examples or few people speaking out in defense of freedom of speech. And even countries like my own from the U.K., which has had a long tradition of free speech, we have the government at the moment, which is meant to be a conservative government, which for years has been trying to introduce the concept of extremism, and they’ve been trying to ban what they consider to be this incredibly vague term of extremism.

If we look across other countries and think, “Well, who else is trying to do this?” Well, the closest comparative to what the Conservative Party in the U.K. are trying to do is Russia.

Russia is the other country that is banning and has successfully banned extremism and religious extremism and the U.K. is wanting to go in that direction. So it’s bizarre and, unfortunately, we have no good model, no good country to look at in Europe.

Davis: Speaking of Russia, you write in the book that these laws, a lot of these hate speech laws in Europe, originated with Soviet influence during the Cold War. Can you explain that?

Coleman: Sure. I have to go back in time a little bit to the end of World War II and really the beginnings of what we now have as the international human rights legal landscape, which now underpins a lot of the legal traditions of countries around the world.

So, we have the Universal Declaration of Human Rights that was adopted in 1948 and then a number of other international treaties that the majority of the countries of the world have signed and ratified and looked to follow. And as these treaties were being negotiated, the world really divided into two very clear lines.

We had on the one hand the countries with a more Western liberal tradition of free speech. And then on the other hand we had the Soviet-led countries that were pushing for concepts such as incitement to discrimination and incitement to hatred.

When it came to the votes on what these treaties would say about issues of freedom of speech, it was the Soviet side of things that won out.

So what we have now is an international legal framework, international treaties that many countries have signed and ratified that really creates the internationalization of hate speech codes. What happened, this was all from the ’40s through to the ’60s, [was] these countries then started to adopt these revisions at the national level.

So one by one, countries in Europe, and then also places like Canada, Australia, and so forth, started adopting the principles of these treaties into their own criminal codes. … You can draw a straight line from where we are today back to that time.

So you see … the Soviet Union influence of this totalitarian ideology and the role of the state in controlling the speech of it’s citizens adopted successfully at the international level and then trickled down to all these other countries at the national level.

Davis: That’s remarkable that that ideological influence continues even after the fall of the Soviet Union.

You write that hate speech crimes often don’t require a victim in order to be prosecuted. Now, that seems odd to a lot of people because you usually have to have standing to sue somebody in court for damages. How is hate speech being treated differently?

Coleman: Hate speech is an outlier. It’s different to a lot of the normal ways that the criminal law operates. And one of the ways you mentioned is in terms of the lack of a victim.

So, of course, there are some laws in some cases in which someone has been insulted or offended and they are the victim, so to speak, of that speech. But a lot of the laws do not require any victim at all.

So what’s happening is people are being prosecuted by the state on behalf of nonexistent or hypothetical victims.

We had a situation recently here in Austria where a professor had delivered a series of lectures on Islam and she had given remarks that were considered to be offensive to Muslims.

There were no offended people present, no offended Muslims present. And, nevertheless, there was an undercover reporter present and she submitted a complaint to the public prosecutor and this lady was criminally convicted.

Her convictions were upheld throughout the Austrian legal system and then the European Court of Human Rights said that Austria was well within it’s rights to do so.

In that whole scenario, there was not any single person who was coming forward and saying, “I’m a Muslim and I was offended by what I heard.” It was all hypothetical victims and the state was acting on their behalf. So it really is a remarkable way for the criminal law to operate.

Davis: Some of the examples you cite in the book are pretty surreal. You compare some of them to medieval cases, even though they’re happening in 21st-century Europe.

You note one case in Sweden where a pastor was on trial for preaching from the Bible against homosexuality in his own church pulpit, not even outside. And you say the judge told him to use a different Bible.

Is that kind of dismissive attitude toward traditional religion or traditional Christianity becoming more common among the judges in Western Europe?

Coleman: I would say that there’s a mentality that we see across Europe and elsewhere [where] they’ll say, “You can have free speech, but … ” And it’s always that but that is the big problem. In this case, for example, they would’ve said, “We have no problem with you preaching from the Bible. We have no problem at all, but not this part of the Bible.” Or, “Don’t say that.”

We see this mentality and attitude play out in a number of different ways in different cases across Europe and elsewhere, where they want to create two clean categories.

One is everything that you are allowed to say and you can have your nice bits of the Bible, you’re going to have your nice things to say on issues of immigration and what have you.

And then there is the other category of, these are the things that you are not allowed to say. So these are the parts of the Bible that you are not allowed to preach on, these are the things about immigration you’re not allowed to point out.

The problem, of course, is who gets to decide what falls in which category and where do we draw the line? And these are the two major questions when it comes to free speech and hate speech that are unanswerable.

So when it comes to who gets to draw the line between one and the other, the reality is that it’s those in power, people who are not accountable, that are subjectively deciding what falls where. And how we draw this line is not like there are clean categories, it’s inherently gray and blurry as to what is allowed in one and what is not allowed in the other.

Sometimes, what I do when I’m speaking on this issue is put a bunch of text up on the screen, things that people have said and ask people to categorize them. “Can you put these into two categories? One being what was upheld as being free speech and one that was prosecuted as hate speech?” And no one has every successfully divided that list correctly.

That just shows it’s impossible to draw the line between what is considered free speech and hate speech and what goes in one category or the other. And we see this attitude playing out from the judges, but also from politicians, from tech companies, and really across the board.

Davis: That’s remarkable.

Is there popular pushback in these countries to any of these hate speech laws or are they generally backed by the public?

Coleman: … One of the things that I try and do in my work is create opposition to the idea of hate speech laws, but there is not much movement in that direction at the moment, it has to be said.

I think that, at the moment at least, there’s a feeling or there’s an idea that if you support the abolition of hate speech laws, then you must somehow support hate speech, which is obviously nonsense.

There’s a big difference between saying, “I think this ought to be allowed. I think this ought to be legal,” and saying, “I agree with this.” But, unfortunately, they are blurred at the moment. So we don’t see much movement toward repealing or reforming these laws, or indeed people speaking out in favor of free speech at the popular level. So I think we’ve got a long way to go in Europe.

One of the concerning things really is when we look at the U.S., which has a very strong legal tradition protecting freedom of speech, but if we look at the movement taking place on college campuses, tomorrow’s leaders see movement taking place within big powerful tech companies, then it has to be said that they’re moving closer and closer toward this European mentality than the other way around at the moment.

Davis: Right. To that point, some might argue … that banning certain types of speech creates a better, more polite, more tolerant state of affairs in society. Why is it so important to defend the principle of free speech when it can be so badly abused?

Coleman: I think that the problem with banning certain types of speech is there is no way to properly draw the line. So what happens is this shrinking dictionary just keeps on shrinking. And it gives those in power the ability to restrict the speech that it doesn’t want to hear, it prevents people from being able to speak out on important public issues.

I think that the person who said it best was a U.S. scholar who said that it’s not that we … I’ll paraphrase, but he said that we recognize that speech causes harm, it’s not harmless, but we fear the censorship more.

I think that’s an accurate way of putting it. It’s the idea that yes, we recognize that speech can be painful, yes, we recognize that speech can be offensive and insulting, but the idea of going down the route of censorship is far worse. And especially when that censorship is backed and enforced by criminal law.

Davis: In your book, despite all the negative trends, you do have cause for hope and you write that in Europe some of these laws could be rolled back. Explain why you have cause for hope there.

Coleman: I wrote the book in 2016 and maybe I was feeling more hopeful than in 2019 when things continue to trend in a negative direction, who knows. But it is possible to see these laws reformed.

We’ve seen, for example, in the U.K. there was a criminal law that banned insulting speech, which is obviously ridiculous. And there was a very broad-based campaign to reform that law that was backed by, for example, a conservative Christian organization from the National Secular Society in the U.K. and a number of other prominent people who would otherwise be ideological opponents. So we saw hope there that people can come together and start to reform these laws and move things in a positive direction.

We’ve also seen a little bit of movement of some other countries as well. So it is possible that we could see the rollback of some of these laws, but we have to create more of an appetite for it within the societal level, which, currently, I don’t think we’re seeing.

I was encouraged recently that there was a law review article written by Amal Clooney, George Clooney’s wife, who was also arguing in favor of reforming the international legal process as well to uphold freedom of speech. So there are people out there who are seeking to change the law to better defend freedom of speech.

But right now, before these legal codes can be successfully changed, we need to see society at large better understand the need for free speech, better cherish it. And I think that is where the biggest cause for concern is, because there is just such an attitude of, “I don’t like this and, therefore, it should be banned.”

Davis: You mentioned the United States earlier and how certain corporations are restricting speech in certain ways that maybe the law doesn’t require and the state doesn’t require, but there is this cultural level of speech restriction that’s applying.

When you look to the United States, do you think this will just remain a cultural and corporate issue? Or do you think even the laws on the books themselves are under threat of restricting speech?

Coleman: I think that if I was in the U.S., I’d be concerned because we have the direction and the things going on college campuses where we see the young leaders who are going to be the judges and the lawmakers of tomorrow very much embracing the idea of censorship.

We see these movements of no-platforming and all that sort of stuff, very pro-censorship. And then we also see the most powerful companies in the U.S., Silicon Valley and elsewhere, who are going down a more European model of censorship.

So, if you have the leaders of tomorrow, plus the biggest companies in the U.S. all speaking out in favor of censorship, I think it’d be foolish not to be concerned about that.

And what would it take? Would it be possible for the U.S. Supreme Court to carve out an exception within it’s First Amendment jurisprudence to say that hate speech is not constitutionally protected? I think that is within the realms of possibility.

As I said earlier, they’ve, throughout the 20th century into the 21st century, adopted robust free speech standards, but the possibility that that could change is obviously there and it’s a real one. So I think that there is a concern that things could change legally in the U.S.

But even the more pressing reality is not so much a carve-out within the First Amendment or a change in the law, but more just this cultural mentality that censorship is a good thing. …

What’s being done is that they’re trying to pit civility versus liberty and that’s what we see. So people would think, “Well, they’ve given up some of their liberty in Europe in order to be more civil to one another.” But I don’t think those two things ought to be hailed as opposites to one another. And I don’t think that going down the route of censorship makes us more civil. And I think there’s plenty of evidence in Europe to the contrary. So that would be my warning to the U.S.

Davis: You’ve been working on these issues in Europe for a long time. Are there any specific lessons that Americans should take from the European experience as we grapple with our own battles over religious liberty and free speech and discrimination?

Coleman: I think, probably, just this idea: At the moment as there is a big debate going on in the U.S., particularly in regard to the way that tech companies are operating and people are looking to Europe within those spaces and saying, “Well, Europe has gone down this route, so why don’t we?” And so my, I suppose, the lesson or my warning to America is that it is not working well in Europe by any means. It is not creating a more civil public discourse, it is not creating a nicer space by any means.

What we see is huge societal tensions. We see huge overreach by the state that is not leading to a more civil environment, but is instead driving these things underground where they could be far more dangerous.

So I think if you look at the polarization and what have you within European politics, and this is within the backdrop of 60 years of censorship, it’s impossible to look at what’s happening and say, “Oh, these laws are working.” So the biggest lesson really is to look at what’s happening in Europe, look at it closely, and not believe people when they say, “We should go down this route because Europe has and it’s working for Europe.”

Davis: It’s a very informative and sobering book. The book is called “CENSORED: How European ‘Hate Speech’ Laws Are Threatening Freedom of Speech,” available on Amazon.

Paul Coleman, thanks for your time today.

Coleman: Thank you very much.

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