Monday, May 28, 2018

Free Speech in the E.U.: Criminalizing Denials of Genocides

While the world continued to look on—like an impotent rich man who cannot afford Viagra—as a genocide was taking place in Syria (i.e., the systemic killing of a group—in this case, of pro-democracy demonstrators), France’s state senate approved a bill on January 23, 2012 criminalizing the denial of officially recognized genocides, which according to the state includes the Nazi Holocaust and the Turkish killing of Armenians beginning in 1915. In the twenty-first century, fining people and putting them in prison for not wanting to remember things so horrible evinces the same kind of nationalist thinking that had led the twentieth to be the bloodiest century. In contradistinction to that decadent century, turning a new leaf following the Arab spring in the twenty-first is a far better strategy.

Beyond the obvious matter of free speech, which admittedly is not absolute even in America, it should be asked whether law is an efficacious means of barring or changing thoughts. On the day of the vote, a study was released at the Bundestag in Berlin reporting that twenty percent of that state’s population was still anti-sematic. I don’t believe penalizing that prejudice itself (i.e., as a belief apart from any conduct) by the state’s police power forces any change at that level. At most, people would simply hide it—and how would such repression burst out in conduct? I submit it would be better simply to ignore the thoughts and concentrate on conduct.

Europe has had a tendency to codify thoughts as if they belong to the state. In America, that realm is province of the “thought police” that sprang up (as self-appointed) during the 1990s as “political correctness.”  At least with political correctness (such as in saying humankind rather than mankind, and Native American rather than American Indian), the self-appointed enforcer can be told to go to hell. The natural reaction to being accosted in such a presumptuous and pernicious way is to say precisely that which is not desired by the aggressor. Adding the police power of the state to enforce certain beliefs by penalizing others is dangerous not only for society itself, but also for individuals in terms of our quality of life free from anxiety. The over-reaching may even be immoral; it is certainly weakness.

A person may be able to control one’s own conduct more than one’s ideas or beliefs. Besides the futility of law in going after a person’s interior mental life, that domain is inherently beyond the unwanted control of another person. The French law would include up to a year in prison and a fine of about $58,000 for anyone who denies an officially-recognized genocide. Is the reach of the law limited to public speeches or published writings, or are people of France to feel anxious at private parties in their own home? In terms of general anxiety, the law could cost the state’s entire population. Is effectively adding the Turkish killings nearly a century before to the German Holocaust worth this in France? It is not as if that E.U. state borders Turkey.

Therefore, behind the 127 to 86 vote is a rather basic category mistake with respect to jurisprudence. Taking the law beyond its native domain to enforce one’s agenda using the police power of the state undercuts law itself, and thus contributes to the downfall of its legitimacy, even in its proper realm. In other words, in over-reaching, a government can wind up with even less influence over its people through even criminal law.

Additionally, a refusal to respect another’s inalienable right to have certain ideas or beliefs is to treat the rational nature (i.e., thoughts or beliefs) itself as merely a means to one’s own designs, rather than as an end in itself. According to Kant, this is immoral because of the value that is rightfully in reason because it is the assigner of value and thus has absolute value. Treating that which has essentially undefined value (as the source thereof) as having value only in so far as it fits with one’s own ideas or beliefs is wrong.

Might it be, Nietzsche would surely add, that modern moralizers are immoral rather than what we take ourselves to be? Who are the aggressors—les esprits méchants et perniceux? Might it be that human beings are far too presumptuous in what we think we know to venture into any other man’s head with impunity? Am I understood? This medicine is not meant for the weak, Nietzsche warns, who nonetheless have an uncontrollable urge to dominate. These new birds of prey are not entitled to dominate, and yet they somehow convince the strong—through thou shalt not—to be ashamed of those thoughts come out of their innate, self-confident strength. Be ashamed of who you are. The strong self-overcome their most willful instincts in order to experience the pleasure of power that naturally goes with their strength. The weak who seek to dominate, on the other hand, are driven by their instinct to overcome the resistance of others by passive aggression (owing to the weakness of the instinct, which they can’t seem to resist anyway) and cruelty (including genocides). Hitler was weakbut so too is the presumption to punish others for their beliefs in retaliation. Birds of a feather, these new birds of prey most certainly are. It is amazing they can even fly.

“By aiming at more [in pride],” Augustine proclaims in City of God (bk 14, ch.13), “a man is diminished.” Pride, by the way, is not self-confident strength, for self-overcoming is blocked by self-idolatry. Perhaps expressing the belief in over-reaching, which is an idea of the immoral and weak, should itself be punishable by a year in prison. This would probably only strengthen the belief, which in turn would weaken the believer even as he or she presumes to be more moral as a self-denying martyr. Lest the advocates of victims become ourselves victimizers (e.g., the Crusaders), it is a good policy for a general population to keep an eye on us too, for we can get quite carried away as moral zealots without realizing how we are affecting others (i.e., rational nature of others). That there have been (and will be) victims of horrible things in the world, does not give anyone the right to punish others for their thoughts or beliefs, for such intangibles are our inner castles, not to be treated like sand by pushy waves.

Fortunately, good sense prevailed and the French Constitutional Council struck down the law that would have criminalized the denial of the Armenian genocide by the Ottoman Turks. “We consider the annulment of the legislation by the Constitutional Council as a step that complies with the principles of freedom of expression and research, the rule of law and international law in France,” the Turkish Foreign Ministry said after the Council’s decision. This statement is ironic, given that the accession of Turkey into the E.U. had been held up in part out of concern in Europe that Turkey was not yet sufficiently ensconced in Western values. Perhaps it should have been asked whether France should be a state of the E.U.


Scott Sayare and Sebnem Arsu, “Genocide Bill Angers Turks as It Passes in France,” The New York Times, January 23, 2012. 

Scott Sayare, “French Council Strikes Down Bill on Armenian Genocide Denial,” The New York Times, February 29, 2012.