Earlier this summer, we partnered with The Cultural Services of the French Embassy on a pair of programs comparing the freedoms of religion and speech in France and in the United States, and how those freedoms are protected in the two countries. In this program, a panel of experts from both countries explores how freedom of speech and press as guaranteed by the French Declaration of the Rights of Man and of the Citizen differs from freedom of speech and press in America under the First Amendment of the Constitution—as well as how laws and courts in both countries protect those rights and address issues over controversial speech. National Constitution Center President and CEO Jeffrey Rosen was joined by Marc-Olivier Bherer, staff editor and reporter for the French daily Le Monde and Nieman Fellow at Harvard in the 2021 class; Suzanne Nossel, CEO of PEN America and author of Dare to Speak: Defending Free Speech for All; Geoffrey Stone, professor at the University of Chicago Law School; and Hélène Tigroudja, law professor at Aix-Marseille University in France and a member of the United Nations Human Rights Committee.
This panel was streamed live on June 1, 2021.
Check out another program from our partnership with the French embassy, “Religious Liberty in France and America,” and more programs on free speech in our Media Library at constitutioncenter.org/constitution.
PODCAST
Or, listen on Apple Podcasts or Spotify.
This episode was produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich. It was engineered by Greg Scheckler and Jackie McDermott.
PARTICIPANTS
Marc-Olivier Bherer is a staff editor and reporter for the Ideas-Debates section of the French daily Le Monde. Working primarily for the op-ed pages, he commissions and edits articles on diverse topics, both national and international. He regularly contributes to the paper’s weekly literary supplement, Le Monde des Livres, and was a 2021 Nieman Fellow at Harvard University. His work has also appeared in outlets such as the Courrier International, Harper’s magazine, and L’Express.
Suzanne Nossel is Chief Executive Officer at PEN America and author of Dare to Speak: Defending Free Speech for All. Prior to joining PEN America, she served as the Chief Operating Officer of Human Rights Watch and as Executive Director of Amnesty International USA. She has served in the Obama Administration as Deputy Assistant Secretary of State for International
Organizations and in the Clinton Administration as Deputy to the US Ambassador for UN Management and Reform. She is also a featured columnist for Foreign Policy magazine.
Geoffrey Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of many books on constitutional law, including most recently National Security, Leaks, and Freedom of the Press: The Pentagon Papers Fifty Years On (with Lee Bollinger). He has also written amicus briefs for constitutional scholars in a number of Supreme Court cases and co-authored the Interactive Constitution's explainer on the First Amendment's Freedom of Speech and Press Clause.
Hélène Tigroudja is a Law Professor at Aix-Marseille University in France, Co-Director of the Law School’s Master Program of International Law, Director of the Summer School on Practice of Human Rights, and Expert on reparations before the International Criminal Court. She is also a member of the United Nations Human Rights Committee and has been a visiting professional at the Inter-American Court of Human Rights. Since 2002 she has acted regularly as an expert for the Council of Europe, the United Nations, and the European Union.
ADDITIONAL RESOURCES
- National Constitution Center, Interactive Constitution, "Freedom of Speech and Press Clause"
- Brandenburg v. Ohio (1969)
- French Government, "Everything You Need to Know About Freedom of Expression in France"
- Suzanne Nossel, Dare to Speak: Defending Free Speech for All
- The United Nations, "International Covenant on Civil and Political Rights" (1976)
- Ed. Geoffrey Stone and Lee Bollinger, The Free Speech Century
- Tom Cotton, The New York Times, "Send in the Troops"
- Beauharnais v. Illinois (1952)
- James Whitman, Yale Law Journal, “The Two Western Cultures of Privacy: Dignity Versus Liberty”
- Anjem Choudary, USA Today, “People know the consequences: Opposing view” (2015)
- Emanuel Macron, “Fight against separatism – the Republic in action” (2020)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jackie McDermott: Welcome to Live at the National Constitution Center. The podcast sharing live conversations and debates hosted by the center. I'm Jackie McDermott, the show's producer. Earlier this summer, we partnered with the cultural services of the French embassy for programs comparing the freedoms of religion and speech in France and the United States, as well as how those freedoms are protected in the two countries. This program explores how the French definition of free speech as guaranteed by the French declaration of the rights of man and of the citizen, differs from free speech in America under the first amendment of the constitution. The panelists also detail how free speech controversies play out in France, including specific cases such as the Charlie Hebdo cartoons.
NCC president, Jeffrey Rosen was joined by a panel of experts from both countries. Marc-Olivier Bherer, staff editor and reporter for the French daily, Le Monde. Suzanne Nossel, CEO of PEN America, a leading human rights and free speech organization, and the author of, Dare to Speak: Defending Free Speech for All. Geoffrey Stone, professor at The University of Chicago Law School and the author of Many Works on Free Speech and Hélène Tigroudja, Law Professor Aix-Marseille University in France and a member of the UN Human Rights Committee. This panel was streamed live on June 1st, 2021. Here's Jeff, to get the conversation started.
[00:01:29] Jeffrey Rosen: I wanna share that yesterday I was hiking in Rock Creek Park in the US and I came across a monument to the French ambassador, Jusserand, and it was right by a cliff where he used to hike with Theodore Roosevelt. And there's a wonderful inscription right by it, which I wanna read because it reminds us of the central fraternity of the US and France in defending values like free speech and Liberty. This is what Franklin Roosevelt said in dedicating this Jusserand Memorial in 1936. He said, "We shall link Mr. Jusserand's name forever with the names of Lafayette and Rochambeau and De Grasse and the other valiant Frenchmen, whose service to this country entitles them for all time to the grateful remembrance of all Americans."
It is an inspiring dedication, and it reminds us of the central enlightenment values that we share in the US and France, the central role of France in making American independence possible and our shared commitment to free speech. So, we're gonna explore that today with four of the greatest scholars and commentators of free speech in America and France. And I'm so delighted to introduce them to you and then to begin our discussion. Marc-Olivier Bherer, is staff editor and reporter for the Ideas Debate section of Le Monde. These articles are illuminating, and I learn from them each time I read them.
He was a Nieman fellow at Harvard in 2021, I think is now and has been published in many magazines and has translated several books, including Jonathan Israel's, Revolutionary Ideas. Suzanne Nossel, is the CEO of PEN America, the leading human rights and free expression organization. She is the author of, Dare to Speak: Defending Free Speech for All important book that we had an illuminating discussion of, on a recent town hall. Geoffrey Stone is Edward H. Levi distinguished service professor at The University of Chicago. He's the author of many centrally important books on constitutional law, including, The Free Speech Century, Speaking Out: Reflections of Law, Liberty and justice, Perilous Times: Free Speech in War Time. His newest book co-edited with Lee Bollinger is National Security Leaks and Freedom of the Press. And he is the author of the National Constitution Center's explainer on the first amendment with Eugene Volokh.
And Hélène Tigroudja, is Law Professor at Aix-Marseille University in France, co-director of the law schools, master's program of International Law and an expert on reparations before the International Criminal Court. She's also a member of the UN Human Rights Committee. Thank you so much for joining us. Marc-Olivier, Suzanne, Geoff and Helene. Geoff, I wanna begin with you. You wrote a piece about the Charlie Hebdo controversy in France explaining why in America, the publication of those Charlie Hebdo cartoons although considered blasphemous by some, would absolutely be protected by the first amendment of the constitution. Tell us why the first amendment protects blasphemy, what the central cases that protect blasphemous expression are and under what circumstances in the first amendment offensive speech can be banned.
[00:05:02] Geoffrey Stone: So, there have been laws in the United States in the past that prohibited blasphemy. And if you go back to the late 18th and early 19th century, there were occasional prosecutions for blasphemous speech. But over the last hundred years or so, it's become clear that the concept of punishment for blasphemy clearly violates both the free speech clause of the constitution and the free exercise clause of the constitution. And there, to my knowledge, hasn't been a successful prosecution for blasphemy in this country in close to a century. The, the Charlie Hebdo situation the issue that would arise today would be less one about blasphemy and more, more one about whether the speech created a danger of a violent response.
And there, first amendment jurisprudence in the United States, has evolved over the course of the past century and has become much more speech protective over time. In 1951, the Supreme Court had a case called, Feiner v. New York in which an individual was giving a speech on a public street that was clearly upsetting to a number of observers and the police eventually ordered him to stop speaking arrested him because of the concern that there might be a violent response and the Supreme Court in the sharply divided decision, upheld the conviction and said that the first amendment did not protect his speech in that circumstance.
In the 70 years since then, however free speech doctrine has continued to evolve. And in 1969 in the Supreme Court's decision in Brandenburg v. Ohio this was a situation in which a, a Nazi speaker was engaged in highly inflammatory speech and was arrested because of the concern that that speech would would cause others to engage in racial violence against others. And the Supreme Court held that he could not constitutionally be punished in that situation unless the government can prove that he had the specific intent to cause that harm and that there was a, the harm was likely imminent and grave. A test that the court has to this day never held to have been satisfied.
Now the Charlie Hebdo situation raises a really dramatic example of that problem because, let's suppose that after the first incident we were to have a second publication of the same types of cartoons knowing what happened the first time. And the question then would be, how many times can you do this knowing that the response is likely to be, to trigger violence? Obviously the magazine would say, "We did not have the specific intent of causing that," but the government could say, "There's a clear and present danger. We know this from past experience."
Supreme Courts never addressed that question, ever had to address that question. And well, my guess is that except in a situation in which the danger was, as they said, clear present and grave the courts would uphold the right of the magazine or the speaker to engage in the speech and put the burden on government to avoid the violence by providing protection against it. But the court has not had a really Charlie Hebdo type situation in the United States since Brandenburg. And it's not a hundred percent clear what the court would do particularly if this is the second time it happened and we already knew what had, what had occurred in the first instance.
[00:08:30] Jeffrey Rosen: Thank you so much for that extremely clear explanation of the Brandenburg standard speech, as you just said in the US must be protected unless it is intended to and likely to cause imminent violence. And you said there might be some question about that for a second publication of the Charlie Hebdo cartoons. Helene, what is the source of protection for free speech in Frances? Is it the constitution? Is it statute? Are those Charlie Hebdo cartoons protected? And what are the circumstances under which free speech can be restricted as incitement to violence in France?
[00:09:05] Hélène Tigroudja: Yeah. Thank you. Thank you very much for, for, for the question. Very important of course, because it's an important difference between French and the US and, and on this on this topic and the question of limitation. The first, the first difference is in terms of legal protection, because of course we do not have a similar first amendment. The freedom of speech is protected by different statues and very important statues in France. Of course there are also very important decisions from the French [foreign language 00:10:07]. So, the French Constitutional Court. Also the, the case of the European Court of Human Rights. But I would say from a general point of view, the statute of freedom of speech and the scope, the very wide scope of the freedom of speech is very different in France, in France compared to the US.
And in relation to what just have been said for instance in order to limit the freedom of speech or the press freedom the requirement is not as high as the imminent violence requirement or the danger requirement. Actually the French approach to freedom of speech is really more balanced, I would say. And we will develop this point maybe later, but actually journalists media, et cetera, of course understood as a, as a key element of a democratic society. And as such, they have, the, they are protected, but in the meantime, they have duties and responsibilities.
And for instance I would just give two example of limitations, apology of terrorism. A journalists cannot, for instance, publish cartoons, jokes, et cetera, on terrorism. And we have different legislation applicable in France to this kind of apology of terrorism and it's prohibited and it's under criminal it may be under criminal sanction even if it may be considered as not immediately dangerous or immediately calling for violent, act. And the other element, which we just mentioned this, but the other element is criticism, criticism on religion. It really depends again because we have to concile the freedom of speech, the press medi- press freedom, et cetera, with the respect of reputation religions of others and so on and so forth.
So, the, the bottom line is to say that we, we, we, we do not have such a, a, a, broad and wide scope of the freedom of speech, and it must be conciled with other rights and Liberty.
[00:11:45] Jeffrey Rosen: Thank you very much for that. That is extremely clear and helpful as well. And it supports publication on the French government website, which says everything you need to know about freedom of expression in France, which lists some of the exceptions that you just noted. The French government website says, freedom of expression is enshri- enshrined in the Declaration of the Rights of Man, Freedom of Press and the law of 1881, but it has limits. Racism, antisemitism, racial hatred, justification of terrorism are not opinions and the following are punishable by law, reaffirming your point, Helene. Incitement to terrorism, which must be a direct and explicit incitement, not only in spirit, but also in its terms. Public justification of terrorism, which consist of presenting or commenting on acts of terrorism while justifying or praising them.
Since 2014, it's also punishable, it says by seven years of incarceration. And then it also adds; the following are punishable by law, public provocations to hatred violence, racial discrimination, public defamation on grounds of an actual or assumed membership in an ethnic national race or religious group, public slander on the same grounds and disputing crimes against humanity.
Okay, Suzanne, you are a great international law expert. Geoff and Helene have, you know, put the broad principles on the table. Where, where do these exceptions in French law come from? Are they, are they by courts or, or are they by law? And is there some principle that justifies them, or they're just a series of exceptions that French courts or French law have recognized and, and help us further understand the similarities and differences between the Brandenburg standard and all of these exceptions.
[00:13:22] Suzanne Nossel: Yeah, well, you know, I, I I don't consider myself a great legal expert, which is why I like to go on panels with people like Geoff and Helene. But, you know, what I will say is that under the ICCPR Article 19, which is essentially international standard for protection of freedom of expression, it is less speech protective than the first amendment. And it makes space for concepts like incitement to hatred and incitement to discrimination as cognizable grounds for limitations on freedom of expression, which are a cri- criteria that we don't recognize here in the United States.
So, it's really in this area of incitement that the differences between a, kind of, global approach and the approach that is in use in Europe and the US approach are most striking where we have this very high standard that Geoff has outlined, you know, where it's very, you know, it's very hard to meet and it has to be imminent and likely to result in violence. Whereas in Europe, you know, you, if it's incitement to discrimination and anti-Semitic, or racist cartoon, you know, that is judged as having a percent- you know a propensity to lead toward you know stoking bigoted attitudes, you know, that can be banned there.
You know, from a US perspective, I think what's, sort of, troubling about that is, is just, it seems very elastic, you know, it seems sort of enormously elastic. I mean, if you take it to, you know, things like sexism and, you know, depictions of women that might have a propensity to, you know, give rise to sexist attitudes, you know, that would be so much of film and television maybe until, until the last couple of years. So you know, I think that's, sort of, the essence of this distinction. But I, you know, I, I think it bears saying a couple of other things, you know, Geoff points out, look, in the, you know, in the United States, you couldn't have been the Charlie Hebdo cartoons. I mean, that's true. You know, they certainly weren't banned in France. And yet, you know, this, the whole controversy about those cartoons really has, you know, little to do with the law.
You know, it's really mostly a matter of public attitudes. And, you know, even though with the cartoon certainly would have been protected speech in this country, you know, they were not published. And there were important you know, news outlets, you know, they were certainly new- you know, it came at a time when there were newsworthy and many news outlets hesitated to publish them you know, because of a taboo that exists in this country. And I think that, you know, a lot of the focus in my book, Dare to Speak, is about how so many of our free speech controversies today really don't implicate the first amendment or even international law they have to do with more ways in how we govern ourselves.
And so, I think, it's hard to probe into these distinctions between a US and the French approach, which, without getting into some of that. You know, just to, to just point, you know, I think in this case, and, and, and my French colleagues will you know, contradict me if they think I'm wrong. I think there's a very, there's an excellent argument. They absolutely were on notice and continued to publish provocative cartoons. You know, the, the Jyllands-Posten controversy was back in 2006 and the Charb the editor of Charlie Hebdo was put on an Al-Qaeda, you know, most wanted list alongside the editors and journalists of Jyllands-Posten because they republished the, the, you know, the so-called Danish cartoons.
And so, you know, this, you know, that awareness, Dan, I thought it was interesting that you brought up the idea that a court might treat it differently, you know, if there was such clear evidence that it might elicit a violent response. 'Cause I think that, you know, there probably was that evidence in this case. You know, my own understanding of these precepts has always been, you know, this crucial distinction between, kind of, ins- incitement and, and provocation with incitement being a, kind of, egging on, where you're really encouraging people to engage in violence. And provocation being, you know, that you're saying something objectionable or outlandish or incendiary and then, in response, somebody that you have no control over you know engages in violence.
And I, you know, I think, and hope that that distinction is, is, is, is a strong one, because I think there's a very different level of cul- culpability. And if we start holding people responsible for the reactions of others to what they say, even if those reactions may be predictable, you know, I think that's, that's sort of strikes me as, as quite a dangerous road to go down because it, it gives, it's, kind of, an amplified heckler's veto, where if I, sort of, make clear in advance that I'm gonna go nuclear if you dare offend me in some or other way, you know your rights might be constricted on the basis of that.
[00:18:07] Jeffrey Rosen: Thank you very much for all that, for flagging the danger of the heckler's veto and for introducing the central legal authority you called it the ICCPR. That's the International Covenant on Civil and Political Rights, which protects freedom of expression in Articles 19 and 20. That Article was cited by the Facebook advisory board, which Suzanne you serve on in the recent Trump v. Facebook decision where the advisory board noted that Facebook had invoked the ICCPR permitting necessary and proportionate restrictions on freedom of expression in situations of public emergency that's threatening the life of the nation. And you note that that's more elastic than the first amendment standards.
Marc-Olivier, just one, before we leave France entirely and broaden to the, to the international standard. You're one of the most thoughtful observers of the similarities and differences between French and American law. I'm still having trouble locating exactly where it is in French law, that this free expression is protected. Judicial decisions, statutes, or, or the International Declaration for Rights of Man. Legally and, and, and, and culturally, how would you help us understand the differences between the French and American constitutional protections for free speech?
[00:19:29] Marc-Olivier Bherer: Quite frankly Jeffrey, I thank you for this question and thank you for the invitation, but I'm not a legal scholar and I have very limited legal culture. I'm more of a journalist, I'm a practitioner of freedom of expression. And what I can tell you about the, the, the, the Charlie Hebdo debate is that even though they are, Charlie Hebdo was protected by, is protected by French laws, it doesn't mean that there's a unified understanding of these caricatures in France. It, it is the cause of major debates and or pages at Le Monde, all the pages have been the s- the, the theater where that, that controversy has played out. And it's important to remember that, even though the, France seems to be unified as the French president, he seems to be pushing forward saying, "Well, we must protect the freedom of of expression of these journalists and of these cartoonists, it doesn't mean that the whole society agrees on that.
And Le Monde was really keen after the attack to say, [foreign language 00:21:59] as it was then the key, the, the, the word that, the expression that the whole a big part of France embraced. And, but I would also say that not, I, I don't think that everybody in, in, in our newsroom was agreeing with that. So, it's important to remember that there are divisions and, and, and other ways to look at these issues. And when, and and the, the, the, the, the practice of freedom of expression raises those questions, and they are, they should be welcomed. They are part of the democratic experience. And as a, as a journalist, I felt, I feel very much protected by the, the, the, the, the laws which exists in France, which, which put borders on what we can do.
The call to violence is really clear. It's, it's forbidden, which means that some article that an article that was recently published in the American press in which got a major editor in a, in a major publication fired over a an op-ed that was published under the, the title, Send In the Troops, could not have been published in France. I couldn't publish that. I would have been le- legally liable for that call to violence or forbidden.
[00:21:43] Jeffrey Rosen: Fascinating. So you've just told us that that is an example of, of differences between the two protection, and you could not have published the column, the troops op-ed. Very interesting indeed. Geoff, for this round, you know, all of your colleagues referred to these international standards clearly under international law, there's greater grounds for prohibiting hate speech in Europe than there is in the US. Holocaust denial is forbidden in Germany, as well as France and James Whitman, the Yale scholar, has the most wonderful article about two conceptions of privacy, Liberty versus dignity, where he says that the European permissions for the prohibition of hate speech are rooted in protections of dignity whereas the US is more focused on Liberty.
So, take us out to US European comparison and tell us about the kinds of speech that could be banned under European and international instruments that could not be banned in the US.
[00:22:43] Geoffrey Stone: Well, the hate speech is a good example, and I think it's important to understand that the United States has come to a position that is highly protective of the right to free speech. But it didn't start there. The Supreme Court, when it first began interpreting the first amendment in 1919 upheld the convictions of a broad range of individuals who had criticized World War I and the draft on the ground that such speech could interfere with the ability of the government to to draft soldiers and to fight the war successfully and therefore it could be prohibited. And then later during the communist era, in the 1950s, the Supreme Court upheld the convictions of all the leaders of the communist party on the ground that their speech could be harmful to the nation.
And during the civil rights era lower courts upheld the convictions of civil rights marchers because they triggered a response by white onlookers that were seen as violent and therefore you could punish the marchers for, for doing this. And over time, what the Supreme Court came to understand is, first of all we cannot trust ourselves to have the authority to decide what we as Americans can say. In the, in the moment, we may think we are being fair-minded and balanced and appropriate and proportionate but with hindsight, we realize that our judgment has been severely colored by the circumstances and by the pressures of the time.
And what the court learned over those decades is that it cannot trust ourselves. And it cannot trust itself to have the authority to approve the suppression of speech when that speech might be offensive to others. And even if it causes harm, unless the harm is essentially likely to create a imminent and, and, and grave danger. And one wouldn't start there. If one word at the beginning of 1919 one would have a hard time justifying such an extreme approach to free speech. And even though, as we know, Justice Holmes and Justice Brandeis embraced an approach somewhat like that very early on, it's not even clear they would have carried it as far as we do today.
So I think a lot of, a lot of first amendment jurisprudence on this issue is the product, is the product of learning from our own mistakes and learning we can not trust ourselves. And in particular, we cannot trust ourselves to allow the majority to decide what points of view can be prohibited. Yes, you can regulate speech in terms of the time, place, and manner of speech, not based on the message being communicated as long as it's reasonable, but as soon as the government picks out particular points of view, whether it be anti-war speech or communist speech, or civil rights speech, or hate speech we don't trust ourselves to do that.
And we therefore air dramatically on the side of guaranteeing free speech. And there's a cost to that. It means we're allowing speech that does cause all sorts of harm in society. But what we've learned is that better to deal with those harms than with the danger of giving the government the power to decide which ideas and which points of view it will censor.
[00:26:02] Jeffrey Rosen: Thank you very much for that. Thank you for reminding us that the protections for hate speech stemming from Brandenburg are relatively recent and that they make the US very much an outlier when it comes to the rest of the world.
[00:26:18] Geoffrey Stone: Jeff and I had one more thought on that, 'cause, 'cause the Supreme Court did uphold the equivalent of a hate speech law in 1952 in the case called Beauharnais and the court is, has clearly rejected the, the premise of that decision ever since. In the last half century, not a single justice has even argued that hate speech can be prohibited consistent with the first amendment, whether they're liberal or conservative, makes no difference. For half century now, every single justice who has addressed that question, has embraced the view that hate speech is a point of view, and we are not going to allow the government to suppress certain points of view. Sorry, I just wanted to mention the Beauharnais case there.
[00:27:01] Jeffrey Rosen: No, it's it's, it's central, and it's a reminder, as you said that it, it really hasn't been that long. Since the 1950s that the US, as early as the 1950s, the US did allow the provision of hate speech, which really raises the question, which I'd love us to dig in on whether this is an aberration in, in US jurisprudence. And there are tremendous pressures to move the US more in a European direction. And as we saw in the, in the Facebook decision where the advisory board invoked international law, and we see the growing demands for the regulation of hate speech online the question is, will and should the US go more in an international direction? And then, you are a scholar of International Law help us understand now more of the international instruments that regulate free speech, including the one that Suzanne flagged.
And what are the precise understanding that's a balancing of interests, how does international law balance interests of speakers against hate speech and what kind of hate speech does it allow the regulation of?
[00:28:04] Hélène Tigroudja: Yeah. Yeah. Thank you. Yeah, I'm going to, to talk about both the ICCPR and I'm a member of the human rights committee. So it's the body in charge of dealing with the implementation of the ICCPR and the European court of human rights, because on this issue of limitation of types of speech, both organs, more or less have the same approach to to limitation. I would actually, the, the, there are two kinds of limitations of of speech authorized at the international level. Or when, when a speech for instance, is very offensive, discriminatory, or a, a speech targets, for instance, a community, there are many, many judgments delivered by the European court of human rights on a prohibition of a speech, for instance, that targets Roma community, for instance, or describes Roma community as a, a very bad commit- and community and so on and so forth.
So the, the, the balance made by the European Court of Human Rights and the Human Rights Committee is really a, a test of necessity and proportionality. The necessity of growth to protect freedom of speech, because it's an important pillar of democracy, but also the necessity to protect the rights of minorities, the rights of different groups and so on and so forth. And on the case by case analyzes both the Human Rights Committee and the European Court of Human Rights do assess whether the limitation of the speech or the prohibition of the speech was in conformity with the ICCPR or the European Convention of Human Rights.
But there's also another type of discourse totally prohibited by international law. It's the, for instance as you mentioned genocide deniers, the Holocaust discourse and so on and so forth. And in this case, it's not only a limitation of freedom of speech, but both in the European Convention and in the ICCPR, there is a provision dealing with abuse of rights. And when someone, for instance, makes a discourse denying the Holocaust, for the international bodies, it is considered as an abuse of rights. So it means that the person does not right, does not have the right anymore to use the freedom of speech and to claim the violation of his or her freedom of speech.
So there, there are also many interesting decisions for instance, against France Faurisson, against France for Faurisson is unfortunately I, I would say a very famous Faurisson who denied Holocaust and Second World War and so on and so forth. And it, it came before the Human Rights Committee and the Human Rights Committee rejected his his complaint. And we have another very recent example on a performance, a, an artistic performance dealing with Holocaust and, and again, denying the Holocaust. The performance was prohibited by the French authorities and the artist was not permitted to go before the European Court of Human Rights.
So indeed on the contrary to, to, to the US the prohibition of this kind of not only offensive or discriminatory discourses, but also very discourses very harmful to dignity. You mentioned the concept of dignity is absolutely prohibited by International and European [inaudible 00:34:08].
[00:31:44] Jeffrey Rosen: Thank you very much for that and for signaling this idea of dignity as the core of the international protections, which are, is a very different approach than the US one. Suzanne there are limits of course to what you can tell us about the Facebook advisory board, but it did cite the ICCPR centrally in its decisions. Do, do you see international law rather than the first amendment as being the future of, of free speech online, especially as the most of our speech takes place online and companies like Facebook are choosing to abide international rather than US standards? And you mentioned the, the malleability of the international standards is, is, is that a good thing, or, or are you concerned that free speech may suffer as a result?
[00:32:34] Suzanne Nossel: Well, a couple of things, you know, first of all, it remains the case that the major social media platforms are US-based. And so, the first amendment does just heavily inform the [inaudible 00:35:12], which split the executives and the legal councils, you know, kind of grew up and, and the way they understand the world. And I, I think the firm sort of at least rhetorical commitment to free speech that is embedded in most of these platforms. I think when it comes to adjudicating content online, there is a very strong logic to looking to international laws standard because it's global, these issues are global. They're you know, looking at every jurisdiction in the world.
And so to the extent that the differ, I mean, obviously national law comes into play and platforms have to adhere to national law in the jurisdictions in which they operate. You know, France has adopted a quite a restrictive sort of digital hate law that imposes harsh fines for platforms that fail to take down hateful speech. And so you know, that arguably, you know, I think from a US lens, people would argue that a provision like that might be in contravention of international law. It might go too far. And yet the platforms are certainly bound to it.
But I think when it comes to the oversight board, international law is the right reference point. It's important to understand though, it is not, the notion is not that it applies directly and automatically to platforms. It doesn't, you know, international law binds governments and was developed to address and, and, and circumscribed the powers of government. So it requires a kind of inductive reasoning to think about how that power ought to apply to private company. And I think there's some ideas in international law that are helpful, you know, the notion that a restriction on freedom of speech needs to be enumerated, that you need to, people need to be on notice that something is prohibited.
The ideas of necessity and proportionality that Helene touched upon. So I think it's a useful reference point, you know, the work of figuring out how to apply it sensibly in you know, this, this global private context of a private platform is, you know, really sort of now just getting underway. You know, will that then filter back to how US courts adjudicate free speech issues? I think that's possible. I mean, we've already seen some courts around the world begin to reference these, you know, even just the ea- earliest first few decisions of the oversight board, because they are, you know, the board is kind of confronting many of these cutting edge questions that courts may look at as well.
So yeah, that's, that's sort of how I would look at it, but I think it, it's important to recognize that you know, I don't think anybody's really arguing that we should treat private companies the same way that we do governments. We all accept and, you know, in fact, demand a much more aggressive level of intervention, moderation take downs from private companies than we would accept from a government in the context of, of, of freedom of speech protections. Just to go to your, quickly to your, your original question about we are, whether this slow slide here in the US toward a more internationalist and European approach is a good idea.
I think one of the, the, the factors that were confronting on all of this is just, you know, as our society has more diverse, these really difficult questions, I think, you know, Jeff, is not very well talking about how we've kind of learned these lessons, the hard way about how dangerous it is to aggregate the power, to do this line drawing into the hands of government. And, you know, in Europe, it sort of seems very clear cut when it's, anti-Semitism but when anti Muslim sentiment, you know, it, it's sort of a very different presup that seems to apply when that speech is evaluated. And you can understand that's from, for historical and sociological reasons, but it, it raises real questions about, you know whether any government authorities are really in a position to apply these precepts fairly.
And, you know, if, if you question that, I think it, it's sort of tilts the balance toward, more toward an American approach where you know, their, their discretion was limited.
[00:36:58] Jeffrey Rosen: Thanks for that. And that, that's a great way of laying out the choices between the more international approach and the more American approach at an increasingly multicultural moment. I'm not going to deviate. We have a question from our audience noting that in light of your discussion of the Tom Cotton op-ed what about the publication of French army letters? So tell us about that controversy as well as other here we go. It's interesting to hear about the Tom Cotton op-ed in light of the French army letters published in the last month. Under what context are those allowed if the Cotton op-ed would not be, and tell us about that and other areas as a journalist where you could not publish stuff in France that would be published in the US.
[00:37:46] Marc-Olivier Bherer: Concerning the, the army letter, I think it's a bit early to really comment on the the, the, the th- th- the legal aspect of, of it, because it might, it could go to, to, to file... a complaint could be filed, and I don't know what would happen quite frankly. In, in terms of... I, I think also that some of the authors where I have seen that their, their relations through the, the French army were cutoff, you know, so it's already a form of sanction. But and clearly also, it wasn't published by the same, kind of, an institution. It was first published by I think a blog then it was got republished by an ultra conservative weekly. So, it's not the same publication as where the Tom Cotton appeared, and it's not the same thing as it, it appeared. It doesn't, doesn't have the same kind of general appeal.
So it's difficult to compare them because the, these things matter. The second question of, of aspect of your question, I, I I think that it's important to, to understand that the, the, the culture around freedom of speech, even though it's such a broad and universalistic principle, it's not the same. You're not, there are, you know, the morals quite not the same. We don't conduct ourselves in the same way. For example, after the, the Charlie Hebdo attack, the USA Today published an op-ed, which din- wasn't really noticed in France at that time. But I remember reading it and being shocked because it was written by Anjem Choudary which is so-called Islamic cleric even though he defends terrorism and he made different, you know, appearances in the, in the the American press.
I don't think I would publish such a person in an op-ed, you know, there would be another... It's okay to publish the, the, the, the opinion of such a person, but there would be journalistic pushback. You wouldn't pu- publish it in a, like an open format where this person is free to say whatever they want. There would be question from a journalist. So the practices of of freedom of speech are not the same, and I'm not saying that there's one is better, or the other is better. It's really, for me, and I think it's very difficult to make such a jud- a judgment like that.
Professor Ti- Tigroudja, I'm sorry if I, I mispronounced your name, I'm sorry, made an allusion to [inaudible 00:43:29] Faurisson, which is like France most famous [negatestanist 00:43:34]. He started his career in Le Monde by publishing in 1977, an op-ed, in which he explained that the Holocaust never happened. And this led to laws being adopted to condemn the, the the negation of the Holocaust. You could say it's a good thing. I believe it's a good thing, but a colleague of mine who works on the resistance interviewed one of the last lady who fought in the resistance. And for her, it was really important to publish that op-ed.
And to publish an op-ed, and again, I said an op-ed is not an, an interview without [inaudible 00:44:14] Faurisson. Because, she, she said, "These views must be exposed. They must be shown, and they must be expressed so that people can see them for what they are." And so for that, it's really difficult to, to, to make a judgment call and to say, well, this is the best, and this is, this doesn't work. I, I'm not in a position to, to make a such a comment, but I just want to underline that there are different ways to look at it.
[00:41:17] Jeffrey Rosen: Thank you for l- laying out the arguments and for your, you know, modesty and n-not choosing among them. But for this last round, I, I think I do wanna ask each of you, which tradition you would advocate for one of our questioners notes, the growing pressure in the US toward the adoption of more European style hate speech laws, and Geoff Stone, you have written the leading protections for free speech on campus in the United States. The, your inspiring updating of the Chicago principles at the University of Chicago. Do you believe that and, and I'll also say and so, the, the US tradition is that Holocaust denial would have to be protected because as justice Brandeis said in the Whitney case, as long as there's time enough for deliberation, the best response to evil councils is good ones. And we have faith that counter speech is better than suppression.
Do you believe that the US should resist efforts to adopt more European style provisions of hate speech and why?
[00:42:24] Geoffrey Stone: So, I do believe that we should resist that. And I think the Supreme court would certainly agree with that proposition. The reason why is simply that I don't trust our government with the power to decide what ideas to suppress again, looking back at our own experience, that's been abused repeatedly over time and being able to define, you know, what is, what is hate speech, right, is hate speech criticizing African-Americans, you know, Latinos, Asian-Americans, Jews, Poles, gays, straights, married people, unmarried people. I mean, it goes on and on. And I, I think that in the end, we are better off allowing that kind of speech to be spoken and responding to it and looking for education and truth.
And I think, you know, one of the things we see in our, in our timeframe is that by allowing speech that in many instances would have been suppressed, the government had the authority to suppress speech that was seen as inappropriate we've changed our minds. We've changed our minds about women's rights, about, about civil rights, about gay rights. If, if the majority had the authority to suppress that speech 'cause it thought it was immoral the gay should have equal rights or that women should have equal for rights I don't think we'd be where we are today. So there's a downside, I'm not saying there's not risk in, in taking the American approach.
but my own view is I'd rather take that risk than the risk of giving government the power to decide what ideas it will suppress and what it will not suppress. And one, one way of thinking about that is, you know, what would the Trump administration have done if they'd had the authority to do that? I wouldn't, I suspect want to live on the country in which the Trump administration and the Republican party had the authority to decide which ideas are impermissible because they'd wrongheaded and unfair and hateful and whatever. I don't think we would have the democracy that we strive to have today if we allowed that to happen. And that's the lesson we've learned from this history and I think it's the right lesson.
[00:44:27] Jeffrey Rosen: Thank you for that inspiring defense of the American free speech tradition. Helene, I, I want to ask you whether you think that the European tradition, which emphasizes dignity is to be preferred, and I do wanna ask you about a fascinating speech that President Macron gave recently. He was denouncing what he called Islamist separatism and said that a, a conscious theorized political religious project is materializing through repeated deviations from the republics universal values. And he in particular and notably called out what he called social science theories imported from the United States by which he meant critical race theory with their problems, which I respect in which exists, but which must be added to arts.
He said, these are Anglo-Saxon traditions based on a different history, which is not ours. This is a complicated, but very important intellectual conflict between the more universalistic traditions, the president of Macron emphasized, of Liberty equality, fraternity, and dignity, and this more multicultural or identity politics based approach that he was questioning. How is it possible that on, on, on the one hand France is embracing this universalism against a critical race theory, but at the same time as allowing for more regulation of hate speech than the US regula- traditional [inaudible 00:49:34].
[00:45:55] Hélène Tigroudja: Yeah, very, very important questions. Of course. May- maybe first on the European model, indeed, I'm, I'm really attached to these European model. And, and just to explain why I'm, I'm going to use a, a French expression, the, the [foreign language 00:49:56]. And I think that it's really difficult, in, but for me, it's also linked to democracy, but it's really difficult to accept a very offensive discriminatory discourse if we want to bring a society. And if we want to, to, to, to build a society based on these [foreign language 00:50:16] values. So for me the, the balance it's, it's, and, and I agree with what have been said by, by the, the by the colleagues. I mean, it's really difficult to to balance, but it's also very important to keep this balance between, and, and necessity and proportionality of prohibition or, or acceptance of types of of discourse.
The second element indeed, is very, very, very worrying. And in this case, I would I would, of course, I think Europe and France would need to, to take inspiration from the US. And and we are as a scholar, for ins- especially, I'm really worried on this threats on academic freedom, because it's not only a discourse maybe, you know, that's the, the French Ministry of Higher Education decided to launch an investigation and on the researchers and publications of people who work on the con- colonial- colonialism and so on and so forth. Our history, race theory, et cetera. So it's not only at the level of political discourse, but it has direct consequences on the way we work.
And the kind of theory we, for instance, at the university, I teach gender theory. Is it allowed? I don't know, and of course, it's my academic freedom to talk to my students on the gender theory, race theory, et cetera, et cetera. It's very in- indeed this academic freedom issue is very worrying. And yeah, the, the rationality of this, of course, I think it's really more political, I would say that really based on an approach or, or intellectual a- approach of universalism, unfortunately.
[00:48:20] Jeffrey Rosen: Fascinating, thank you for that. Suzanne, this is a really important, co- complicated debate. And broadly, it seems to be between the universalistic tradition that president McMahon defended in his speech and which is rooted in the American first amendment tradition as well of allowing multiplicity of views to flourish without regulation. And well, we'll call it this more particularist tradition, which president of McMahon associated with critical race theory, which would suggest in the academy in Publix Square that there's less grounds for free speech. How would you characterize this debate and, and help us understand how in this case it's France, that seems to be on the side of universalism.
[00:49:02] Suzanne Nossel: Yeah, well, look, I don't think it's that simple. I think there is a kind of intimate interplay between our free speech precepts, you know, the desire to give greater recognition to other identities and experiences, you know, the emphasis that's being placed on critical race theory, the backlash against it. And you know, my, a lot of my work and my book is about how we can reconcile the imperative of driving towar- forward toward a more equal inclusive society with robust protections for free speech and academic freedom. And, you know, I, I think a lot of that best really, you know, going back to something I said in the beginning, it's, it's not ultimately, I don't think it will be resolved by law.
I think it's going to be resolved by social norms and taboos and how we figure out how to live together in these diverse societies. and where we need to exercise voluntary restraint, and how we can communicate to people about the imperative of that and the benefits of that, and how that can actually be at a safeguard in so called free speech. I mean, if, if the vast majority of us, the vast majority of, of the time, exercise conscientiousness and distre- discretion and are respectful, I think we can have space at the outer margins for people who want to provoke and challenge. I mean, to Jeff's point and best heresies that, you know, maybe destructive but may also be catalytic for social progress.
And I think it is by, you know, sort of revising our set of social norms, that govern free speech that we can safeguard and make space for you know, that which really tests and, and contests them. So that's, that's how I look at it.
[00:50:46] Jeffrey Rosen: Thank you for that. And I recommend your wonderful book to our viewers which argues among other things that many of these debates must be resolved, not by law, but by norms. Well Marc-Olivier, you have a tough hon- honored position, which is the last word in this great discussion, and I'll leave it to you to leave our listeners with, as, as an, astute observer of American and French society how do you see the similarities and differences between French and American approaches to free speech?
[00:51:13] Marc-Olivier Bherer: Th- there's the, the, the question of the norms and the, the way that we negotiate all those questions are really important and wonderful. The thing that struck me in the year that I passed in the US as a Nieman Fellow, other than a Nieman, the fellowship has just come to an end, and I've been struck by the number of journalists who have lost their job because of a misplaced tweet recent or in their past. And there's an element where I can take a normative stance. And I think that, in terms of protection of workers, it will be great if the, the, the, the US take a bit of inspiration from France, because it, I, I believe there's a tendency to fire a bit, people a bit too fast. And instead, so it, it looks as if the management has taken into consideration the problem and has moved and done something about it.
But in fact, it's just getting rid of the problem, and the questions are not really asked. If you, if you don't have the room to make mistake and then discuss it as a practitioner of, of, of of free speech of freedom of expression and freedom of the press, and then decide, well, why didn't it work? Why what's the problem with that? And if you're just fired and then disappear, then the, the, the, the, the, the, incentive is simply to take less risk and not to assess the risk and try to decide how is it, how is it, how is the good way to conduct a democratic debate in the opinion pages of any given newspapers. So, in terms of I would say [laughs] I would follow Biden's call to strengthen unions. But that's really maybe more of a joke. But I think a, a general observation, I think that this a- the aspect of the, the, the, the, the work relations are also really important and the practice of, of free speech.
[00:53:05] Jeffrey Rosen: It's a crucial point. And thank you for reminding us and teaching us that in France, there are protections for workers being fired on the basis of speech that don't exist in the US. And in that respect we might indeed in the US, take a lesson from France. Thank you so much, Geoff Stone, and then Tigroudja, Suzanne Nossel, and Marc-Olivier Bherer for just a wonderful discussion of similarities and differences between French and American approaches to free speech. And thank you so much, Vincent Michelot the the cultural services of the French embassy for having conceived this important series to the Ambassador Philippe Etienne, who's been defending free speech and is also supporting our joint collaboration very much in the tradition of Jusserand, Lafayette, Rochambeau and all those great French heroes who inspired me during my walk in Rock Creek and who inspire all of us with our shared devotion to the universal principles of Liberty, Fraternity, and Equality.
Look forward to our next convening very soon. And until then, thank you. And [foreign language 00:58:18] bye everyone. Thank you.
[00:54:18] Jackie McDermott: This episode was produced by me, Jackie McDermott, along with Tanaya Tauber, John Guerra and Lana Ulrich. It was engineered by the National Constitution Center's AV team. If you enjoyed this conversation, please check out another program from our partnership with the French embassy on Religious Liberty in France and America. We'll link to it in our show notes, where you can listen to it as a Live at the National Constitution Center podcast, or watch it as a video. For more on free speech, check out additional past programs on the first amendment available in our media library at constitutioncenter.org/constitution, and in the show notes. As always, please rate, review and subscribe to Live at the National Constitution Center on Apple Podcast or follow us on Spotify and join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
