We Have Free Speech. March 2001

[Guest guest]

http://www.fff.org/comment/ed0301c.asp

 

We Have Free Speech

by Jacob G. Hornberger, March 2001

 

A recent ruling by a French court in a lawsuit brought against

.com reflects the dramatically different way in which Americans

and Europeans view the importance of individual liberty.

 

The case involved 's online auctions of Nazi memorabilia. In

France, as in Germany, such sales constitute a severe criminal

offense. While was not permitting the auctions on its French

website, there was nothing to prevent Frenchmen from accessing 's

U.S. site and purchasing items there.

 

The French court ordered to block French users from accessing

online auctions of Nazi materials on its U.S. site, a process that is

not technologically possible. While continues to contest the

court's order, it recently removed thousands of hate items from its

online auctions.

 

The true test of a free society is not whether people are free to

publish respected, popular, and approved materials. The true test of

freedom is whether people are free to publish vile, despicable, and

contemptible items.

 

A good example of an unfree society was Germany in the 1930s and

1940s. In Nazi Germany, the state had the power to determine which

items could be published and to criminalize the publication of

unacceptable materials. If a person published prohibited items,

punishment was often severe.

 

Consider the story of " The White Rose, " a series of essays

surreptitiously published by two German college students, Hans and

Sophie Scholl, in 1942. The essays severely denounced Adolf Hitler and

the Nazi regime and even called for the overthrow of the government.

 

The essays were illegal under German law because criticism of the Nazi

regime was considered vile, despicable, and contemptible. What was

significant, of course, was that the German government had the power

to determine which utterances were unacceptable and to make their

publication illegal.

 

Hans and Sophie were ultimately caught and put on trial by the German

authorities. The judge castigated them for their illegal and

unpatriotic conduct. Sophie shocked everyone in the courtroom when she

said to the judge, " Somebody, after all, had to make a start. What we

wrote and said is also believed by many others. They just don't dare

to express themselves as we did. " The judge sentenced both of them to

death. As Hans followed his sister to the guillotine, he paused and

yelled, " Long live freedom! "

 

Of course, the Nazi authorities could kill them only once for uttering

such " despicable " ideas.

 

The problem is that French and German authorities today assume and

exercise the same power that Hitler and the Nazis exercised — the

power to determine what is acceptable speech and to criminalize the

publication of what is considered to be unacceptable. Under the Nazis,

criticism of Nazism was considered unacceptable. Today, glorification

of Nazism is considered unacceptable. But make no mistake about it:

The mindset that government should have the power to make this

determination and to punish people for violating it is no different

today than it was 60 years ago under Hitler and his henchmen.

 

Compare this to the United States. No one would dispute that some U.S.

officials would love to assume and exercise the same power over speech

that Hitler exercised 60 years ago and that Germans and French

authorities exercise today. And it's true that U.S. officials have

made significant inroads in the area of pornography and " commercial "

speech.

 

But by and large, people in the United States are free to publish

anything they want, including pro-Nazi material. And the reason for

this is the higher law that our ancestors imposed on our government

officials more than 200 years ago when our government was established.

I'm referring, of course, to the U.S. Constitution, and more

specifically, to its First Amendment. Under the First Amendment, the

members of Congress, albeit democratically elected, are absolutely

prohibited from abridging freedom of speech, even if 99 percent of the

citizenry consider some of it vile, despicable, and contemptible.

 

So, the next time you see Nazi memorabilia being advertised and sold

in the United States, count your lucky stars that you live in a

society in which the Founders rejected the old European mindset of

control and chose liberty instead.

 

 

Mr. Hornberger is founder and president of The Future of Freedom

Foundation (www.fff.org) in Fairfax, Va.