June 25, 2003
Dear David,
The
proposal, as described in the Guardian, is troubling to us of course when
contrasted with American free speech ideals. But it is troubling
for two additional reasons.
First, it
is troubling not because we ourselves would not tolerate such a
directive, but rather because it pretty much describes the endemic
bowdlerizing of grade school textbooks in the United States, well
described in recent news reports. (Not to mention various codes of
political correctness in places of business and universities.) But
at least Congress (I think) has confined mandates for "decency"
and ideologic gag rules (Rust v. Sullivan) to conditions on spending and
the military ("don't ask don't tell"). The states and
school districts are doing this bowdlerizing thing to themselves.
Second ~
to return to Europe ~ the Greek commissioner's proposal is troubling
because its emphasis on gender ~ her particular concern ~ seems to
downgrade Europe's own postwar norms. Nazi hate speech in Germany,
for example, I believe, is criminalized. If so, it is not
because freedom of speech is not valued and practiced by Germans, but
because of Germany's special experience and knowledge that hate speech
whether uttered by government, or encouraged or merely tolerated by
government, does indeed incite to genocide even without directness and
immediacy. The failure of the proposal as described in your email
to acknowledge specifically the obligation of Europeans to refrain from
antisemitic incitement, while specifically insisting on an obligation to
avoid sexist speech, is particularly troubling at this time when Europe
seems both coopted and intimidated by its growing Moslem extremist
populations, and when anti-Jewish violence is recurring with well
documented frequency. What is not a compelling governmental
interest in America may well be a compelling governmental interest in
Europe. Any thoughts on this?
Louise
At 07:51 AM 6/25/03, you wrote:
I've
maintained for some time that more and more censorship is inevitable in
countries that do not share the United States' constitutional commitment
to freedom of speech, but instead allow restrictions on such freedom in
the name of equalitarian concerns. According to an article in the
Guardian,
http://www.guardian.co.uk/gender/story/0,11812,984416,00.html
a draft proposal for the EU states "that while freedom of _expression_
must be respected, sex discrimination and affronts to human dignity
should be banned from media and advertising."
"The purpose is to avoid throughout all forms of mass media all
stereotypical portrayals of women and men, as well as any projection of
unacceptable images affecting human dignity and decency in
advertisements," an internal commission document says.
Exactly who is going to be charged with deciding what images are
"unaccepable" because they affect "human dignity and
decency?" Undoubtedly, if this proposal passes lobby groups
will form to get the EU to declare anything that goes against their own
ideology as "unacceptable."
Professor
David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste
blog: http://bernstein.blogspot.com
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My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, will
be published in October
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