Lars von Trier and the dogma of hate speech

Yes, the Danish director’s comments about Hitler were dumb. But no one should be prosecuted for what they say.

On 5 October, it emerged that a French prosecutor has opened an investigation against Danish film director and screenwriter Lars Von Trier for ‘justifying war crimes, crimes against humanity or inciting to racial hatred’. But while Von Trier may have said some stupid and distasteful things, the criminal law has no place in regulating what people say.

The investigation follows a complaint relating to Von Trier’s comments during a press conference at the Cannes Film Festival earlier this year. At the press conference, Von Trier said, among other things, that he ‘understood’ and had ‘a little sympathy’ for Hitler. He also made rambling comments about being a ‘second-rate Jew’ as well as a Nazi and that he was in ‘favour of Jews’ but not ‘too much’ because ‘Israel is a pain in the butt’.

Trier also repeatedly said that he was joking and ‘how can I get out of this sentence? OK, I’m a Nazi.’ No doubt Von Trier – accustomed to an indulging media treating his every non sequitur as a revelation – thought he was being provocatively witty. Von Trier only realised he had crossed the line when it was too late and the damage had already been done. Trier’s comments were rightly condemned as inappropriate by everyone from his cast to the director of the Cannes Festival who even decided to expel Von Trier. But while Von Trier’s comments were in very poor taste, they were more likely to induce severe cringes than incite hatred against Jews or enthusiasm for Hitler and the Nazis.

But this is exactly the problem with so-called hate-speech laws. Such laws have their basis in international human-rights conventions, which is ironic since they involve the undermining of a fundamental right - to free speech. There is no objective way to legally define which expressions are sufficiently hateful or offensive to fall foul of the law. The determination thereof is deeply subjective and depends on the sensitivities of individuals and groups. In free societies characterised by political pluralism and a diversity of viewpoints, citizens will constantly be confronted by ideas or expressions they find offensive or even abhorrent.

When Danish newspaper Jyllands-Posten published cartoons depicting the prophet Mohammed, many Muslims simply shrugged. Others were gravely offended, and a vocal minority was prepared to use violence in order to defend the honour of the prophet. Hate-speech laws amount to the acceptance of a ‘heckler’s veto’, where the groups and individuals who are both most vocal and sensitive get to define the limits of public debate.

As a result, the pan-European insistence that multicultural societies require legal boundaries for controversial expressions rather than vigorous free debate is having serious consequences for both political discussions and artistic freedom. Numerous politicians, artists and authors have been prosecuted, and some convicted, for ‘hateful’ or ‘offensive’ expressions. Targeting peaceful expressions, even if offensive, seems particularly dangerous in an era where some of those who object to criticism of religion, Islam in particular, often resort to violence, intimidation and threats in order to obtain ‘respect’ for their faith, its symbols and adherents.

Disturbingly, the European Court of Human Rights (ECHR) has long held that freedom of expression only offers very limited protection against blasphemy and hate-speech laws. Thus, the court has rubber-stamped Austrian, British and Turkish authorities’ confiscation and censorship of artistic films and books likely to offend Christians and Muslims. In France, a mayor, an author and a cartoonist have been fined for, respectively, advocating a boycott of Israel, warning against Islam and publishing a cartoon glorifying the terrorist attacks on 9/11. All of these punishments have received the blessing of the ECHR. While several of those convicted deserve moral condemnation, prosecuting them risks suffocating both artistic and political expression, creating an environment based on conformism, political correctness and self-censorship.

If European states cannot entrust their own citizens with the right to engage in a free and uninhibited debate, even when it offends different groups, how can they hope to find solutions to the complex problems they face through democratic processes? As the ultimately futile convictions of leading Nazis during Weimar Germany showed, limiting freedom of expression is a blunt instrument in fighting extremism.

Genuine racism, religious hatred and homophobia can and must be combated through an open and unfettered debate. By empowering an active civil society, freedom of expression can thus be said to include its own safety valve against hatred, propaganda, and racism. The scandalous criminal investigation of Von Trier should prompt European politicians to debate the merits of hate-speech laws. Such debate would show that genuine tolerance, a central attribute of any healthy pluralistic society, is better nurtured by free debate than by legislation that infringes on freedom of conscience and speech.

Jacob Mchangama is director of legal affairs in the Danish think tank CEPOS and external lecturer in international human rights law at the University of Copenhagen.

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