ADORNEY: Never Forget Whom Speech Laws Are Designed to Protect


Julian Adorney Julian Adorney is a writer and marketing consultant with the Foundation for Economic Education.
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A week ago, an anonymous French woman was arrested at her home and charged under a 150-year-old law. If convicted, she will face a fine of 12,000 euros. Her alleged crime? Insulting French President Emmanuel Macron. On a Facebook post, she referred to him as “filth.” 

This is an example of lèse-majesté, defined as, “an offense violating the dignity of a ruler as the representative of a sovereign power.” Lèse-majesté is one of the oldest free speech curtailments in the world, for the simple reason that powerful people don’t often like being insulted and have historically used the power of the law to protect themselves from insult.

The case also highlights something that we often forget: censorship is primarily a tool wielded by the powerful to go after the marginalized. Proponents of modern-day censorship often couch their proposals in a sincere desire to help people who have been historically oppressed. Richard Delgado and Jean Stefancic, authors of Must We Defend Nazis?, suggest that laws against hate speech will be used to protect minorities from hateful rhetoric. The authors also say that these laws might send a signal to minorities that hate against them is not to be tolerated, surely a good thing.

However, laws that criminalize what we can say about a given group–be it the President of France or a resident out-group–have a sordid history of being used to restrict the already marginalized. In his book Free Speech: A History from Socrates to Social Media, Jacob Mchangama documents how white racists in the 19th century used censorship laws to further punish African Americans and maintain slavery. In the early 1800s, abolitionists tried to convince Southerners that slavery was evil. Slave states responded by cracking down on abolitionists’ free speech. In 1836, Virginia passed a law criminalizing publications whose purpose was “persuading persons of colour… to rebel, or denying the right of masters to property in their slaves, and inculcating the duty of resistance to such right.” In Alabama, a newspaper column argued that “God commands, and all nature cries out, that man should not be held as property.” A grand jury swiftly indicted the paper.

This trend of criminalizing speech that pushed for racial equality continued for decades. In the 1910s, the Post Office Department chose to exclude several issues of the NAACP’s magazine Crisis from the mail. They claimed the magazine’s purpose was “exciting racial prejudice” which was “exceedingly dangerous.”

It’s not just pamphlets that criticized slavery and Jim Crow: governments have a rich tradition of cracking down on any speech of which they do not approve. Western Europe has a long history of blasphemy laws, which criminalized the promotion of any religious doctrine that the official Church did not sanction. This included Islam and Judaism, of course, as well as interpretations of Christianity and Jesus’ teachings that the powers that be did not like. Some Muslim countries still punish blasphemy with the death penalty.

The fact that censorship laws always end up being used to oppress the already marginalized makes sense when we remember that such laws are passed and enforced by those in power. Such laws also tend to have enormous gray areas–what exactly is the definition of “exciting racial prejudice”?–which have to be interpreted by those in power. 

Eleanor Roosevelt, a stalwart champion of free speech, warned how governments could enforce even well-intentioned censorship laws to entrench their own power more than seventy years ago. Speaking about the dangers of hate speech laws, Roosevelt warned, “any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequently prohibited.”

So if censorship is more often an attack on the marginalized than a shield for them, what actually works to protect minorities? Free speech. Frederick Douglass championed free expression at great length as a tool to promote equality. He noted that, “the right of speech is a very precious one, especially to the oppressed.” Over a century later, Nadine Strossen, president of the ACLU from 1991 to 2008, concurred: “It is precisely those who lack political or economic power who are the most dependent on robust freedom of speech.”

In the United States, we should be grateful for our free speech protections–not least because history shows that they’re an essential defense for marginalized groups.

Julian Adorney is a writer and marketing consultant with the Foundation for Economic Education.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.