Today's conviction in Paris of fashion designer John Galliano for "anti-Semitic insult" highlights a dilemma for citizens of liberal democracies like France and the United States. At what point do racist diatribes cross the line between protected and punishable speech?
Many Americans believe that the First Amendment shields public racist statements under all circumstances. But this is not true. Words that provoke immediate violence against their targets (like "there goes a white boy; go get him!") and expressions that constitute threats (like burning a cross on a black family's lawn to intimidate them) are not covered by the Constitution. Nor are many racist sentiments expressed in a workplace, a university, or on the radio or television.
Moreover, looking back at American history reveals an era where inflammatory statements were far less protected than they are today. In 1942, the Supreme Court forbade words that "inflict injury or tend to incite an immediate breach of the peace." Ten years later, the Court confirmed the conviction of a Chicago man for distributing leaflets that decried the "the aggressions... rapes, robberies, knives, guns and marijuana of the negro."
It was not until the 1960s and 1970s that the Court and society moved firmly toward a more speech-protective stance. Our commitment to tolerating rabid racist statements in public is therefore of relatively recent vintage.
In precisely the same era, European countries tilted in the opposite direction. For its part, France forbids not only racist insult, but also provocation to racial hatred. John Galliano is hardly the first prominent person in France to earn a conviction under these statutes. Far right political leader Jean-Marie Le Pen has been found guilty for asserting the "inequality of the races" and for framing immigrant integration as "a veritable invasion." Actress and animal rights advocate Brigitte Bardot has also been successfully prosecuted five times under these laws. Her most recent conviction was for making public a 2006 letter to Nicolas Sarkozy in which she referred to Muslims as "this population that is destroying us."
From an American perspective, it is difficult to fathom how Bardot's statement could lead to a €15,000 fine. After all, she is simply expressing her opinion, no matter how odious. Americans are leery of giving the government the power to prosecute people for their beliefs, and are attached to the notion that restricting any controversial speech places all controversial speech at risk.
From a European perspective, however, Galliano's anti-Semitic rants and Bardot's diatribes against Muslims add nothing to the common good. They inflict pain, attack human dignity, and risk driving a wedge between segments of society. Punishing racist statements like these is thus wholly justifiable as an exception to their otherwise strong commitment to upholding free speech.
Since the 1960s, freedom of expression has become entrenched in our law and in our public consciousness to the point where it is unthinkable that John Galliano or Brigitte Bardot could be convicted for racist speech in the United States. The Supreme Court has turned away from the mid-century decisions that allowed restrictions on racist insult and provocation to racial hatred in the European manner.
But our own history shows that, like our trans-Atlantic neighbors, we once disdained inflammatory speech that added little to the marketplace of ideas and that risked generating violent reactions or aggravating racial divisions. While the French solution is no panacea, understanding the reasons behind it can help us rethink our own stance. We may lose more than we gain from protecting racist speech.