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A Note from Our Editor: American Law and Freedom of Expression

As is well known, your Editor is an internationalist, and, in his capacity as an English barrister and member of the Paris bar, tends to defend the values of the great European legal systems (as well as classical French cuisine).
 
There are, however, times when it is important to stress the superiority of American law at its point of greatest strength: the defence of civil liberties. Our nation was founded very largely out of a concern that the citizen should be able to speak his or her mind and not be persecuted because of political, religious, or other opinions potentially or actually offensive to others. Interestingly enough, the separation of church and state, which occurred in France at the beginning of the 20th century, was based on the desire to keep the church out of the political realm; the American separation of church and state in the 18th century, by way of the Virginia Bill of Rights and the 1st Amendment to the Federal Constitution, had the reverse motivation: to keep the state from meddling in religious matters, especially in attempting to control the free expression and practice of believers.
 
In America, unless a belief or opinion poses an immediate danger—unless it is likely to cause a breach of the peace—it can receive public expression.   (The breach-of-the-peace qualification parallels the adage, “Free speech does not give one the right to cry Fire! in a crowded theatre.”)   Even when the particular opinion or belief is obnoxious or patently false, the right to manifest it orally or in writing remains.   Thus, in l978, U.S. Federal Court upheld the right of a neo-Nazi organisation to express its beliefs by marching through Skokie, Illinois, even though that Chicago suburb was a predominantly Jewish area.   The American principle is that a civilised populace should be mature enough to put up with what they find obnoxious, and the way to deal with false or absurd ideas is to show them to be such in the same public sphere where they are being presented. To repress such expressions of belief or opinion is merely to drive them underground and to suggest that they may, after all, have genuine credibility.
 
The European approach, however—at least following the racial atrocities of the Second World War—has been very different.   In the contemporary law of most European countries, “incitement to hatred” statutes have criminalised a wide range of opinion statements which in the United States would be regarded as within the protected ambit of free speech.   I limit myself to the French context, but close parallels can be found in most continental European legislation and practice.
 
In 1951, the great French Freedom of the Press Act of 29 July 1881 was amended to criminalise, with a penalty of 5 years imprisonment and a 45,000 Euro fine (roughly, $67,500 today) anyone who intentionally publishes a defence or apology for “war crimes or crimes against humanity or serious criminal acts involving collaboration with the enemy.” In 1972, a further revision was passed: Article 24 now also punishes with a year of imprisonment and/or a fine of 45,000 Euros “those who shall have provoked discrimination, hatred, or violence toward a person or a group owing to that person’s or group’s origin or to their connection or non-affiliation with a specific nation, race, or religion .” At the end of December, 2004, a further clause was added to law, criminalising in the same terms any discrimination or provocation to hatred or violence directed against “a person or a group by reason of their sex, sexual orientation, or handicap.” Even if the incitement to hatred is not published, but only uttered to the person himself or herself, it falls within the class of the most serious minor infractions (5th class contraventions), with a fine which can reach 1,500 Euros (double that if the offense is repeated).
 
To be sure, intent to harm must be shown, and vague allegations are not prosecutable. But since anti-discrimination organisations have standing to sue (as parties civiles) in these matters, there have been a fair number of cases against those who have allegedly incited anti-Jewish hatred by denying the Holocaust or the extent of it. Indeed, the 1951 addition to the law makes it a criminal act merely to attempt to justify “crimes against humanity” even if no provocation to racial hatred is involved.
 
Just a single, recent example, occurring in our home area of the Alsace.   In a news report of June 26, 2008, it was reported that the Court of Appeals in Colmar¨ not only upheld a lower court conviction of a year’s imprisonment but at the same time doubled the fine to 20,000 Euros in a case involving a Holocaust revisionist. The defendant, a Belgian resident, had written a pamphlet titled, Holocauste? Ce que l’on vous cache (“Holocaust? What They Are Hiding From You”), which was published in Saverne (an Alsatian city) and then throughout France.
 
Now, for the record, I am the last person to deny the existence or the horrors of the Holocaust. And I fully appreciate that fact that it occurred in Europe, so that Europeans have every right to be more incensed than Americans (or Australians or Chinese) by the cavalier treatment of it. But the answer to those who deny or minimize racial atrocities—or atrocities of any kind, for that matter—is to disprove their allegations in the public forum of ideas—not create martyrs to their cause by jailing them.
 
I have a dreadful time quoting Voltaire positively, since his deistic theology was and is an abomination—but he was right on target when he declared: “I disagree with what you say, but I shall defend to the death your right to say it.”
 
 
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The present issue of the Global Journal continues the philosophy that has governed the periodical since its inception:  solid theology and unquestionable relevance.  We are all concerned with the Islamic threat to western values and Muslim opposition to classic Christian affirmations; thus our lead article deals with "An Examination of the Qur'anic Denial of Jesus' Crucifixion in Light of Historical Evidences."   Its author, Mark Pierson, submitted this essay as part of his work at the July, 2007, session of Patrick Henry's International Academy of Apologetics, Evangelism and Human Rights, held annually in Strasbourg, France; the essay should serve as an indicator of the high quality of the Academy programmes and encourage other participants to submit their magna opera for possible publication.
Dr Harold F. Carl has provided fine contributions to the pages of our on-line journal in past and does so again in this issue.  His essay, "Did the Son Always Exist?" is particularly apropos in light of the unjust criticisms of Tertullian and of the patristic formulation of Trinitarian doctrine and the eternal Sonship of Christ as popularised by Elaine Pagels and her ilk.
Finally, in line with Patrick Henry's concerns not only with historic Christian faith but also with its application to political theory and government, Ph.D. candidate Robert Arnold of the Southern Baptist Theological Seminary asks--and offers a thought-provoking answer to--the question, "Was Samuel Rutherford a Source for John Locke's Political Theories?" 
 
-- John Warwick Montgomery


(1) A delightful city south of Strasbourg; the birthplace of Bartholdi, the architect of the Statue of Liberty; we visit its wonderful Unterlinden Museum each summer during Patrick Henry’s International Academy of Apologetics, Evangelism and Human Rights. Sign up today (www.apologeticsacademy.eu)!

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