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Free speech: just for nice people, or for crazy racists as well?

If you’re compiling a list of salient political issues for 2012, free speech should probably get a prominent place. The debate that began last year in Australia with the Andrew Bolt case has continued, reaching a new pitch this month with a powerful intervention by former New South Wales chief justice (and new ABC chairman) Jim Spigelman, who argues against the criminalisation of “offence” or “insult”.

Meanwhile, new proposals for media regulation arising from the Finkelstein inquiry in Australia and the Leveson inquiry in the UK have raised concerns about free speech; so have the schemes of internet regulation floated at the recent International Telecommunications Union conference in Dubai. But free speech also had a notable win when the Gillard government last month abandoned its plan for a comprehensive internet filter.

That’s all food for thought. But a current case from France, while almost invisible in the Australian media, poses some of the issues about free speech with unusual clarity.

Marine Le Pen, leader of the far-right National Front and a member of the European parliament, is under investigation for “hate speech” over anti-Muslim remarks made in a speech to her supporters two years ago. Referring specifically to public prayer by Muslims in French cities (due to a shortage of mosques), she said “For those who like to talk about World War II, to talk about occupation, we could talk about, for once, the occupation of our territory. This is an occupation of parts of our territory. There are no armoured vehicles, no soldiers, but it is an occupation all the same and it weighs on people.”

That’s an appalling, offensive, hateful figure of speech. And not just in relation to Muslims – the reference to the second world war seems phrased in a way to deliberately slight its victims. (Her father, Jean-Marie Le Pen, once famously referred to the Holocaust as “a detail” of the war.)

It’s good reason to condemn Le Pen, to treat her as beyond the pale of reasonable political discourse. It’s certainly a good reason not to vote for her party – although there were plenty of those already. But is it really something best dealt with by the criminal law? Do we want people fined or sent to jail for overblown political rhetoric?

As a European parliamentarian, Le Pen would normally enjoy immunity from prosecution, and she has therefore refused to co-operate with the investigation. The French justice ministry has now formally requested that the parliament lift her immunity for this case. It is “studying” the request – a process that could take some months.

Le Pen’s opponents have supported the investigation: one described the matter as “of deep concern not only in France but to the wider EU where Islamaphobia is on the rise and is having a real and deeply negative impact on people’s lives.” But is that really a problem that the law is equipped to remedy? Might not making a martyr of Le Pen – she has already attributed the investigation to “the fear of the system in the face of its primary opponent” – just have the opposite effect? It certainly never did much to silence her father.

Yet this is something that Europeans seem remarkably comfortable with: the idea that certain sorts of speech, particularly on racial topics, need to be suppressed by law. Clearly the idea has gained ground in Australia as well. Spigelman in his Human Rights Day oration defended the distinction between “hate speech” and merely offensive speech, supporting laws against the former. Yet drawing the line between them is at best a murky business.

This is one of those things that marks the United States off from most of the developed world. There, the first amendment is interpreted in a way to rule out content-based restrictions on anything that could remotely be called political speech. For what it’s worth, I think that’s the right way to go: the remedy for bad speech is better speech, not courts and prisons.

But the US isn’t always a bastion of free speech, as can be seen from its puritan regulation of broadcasting and its enforcement of highly restrictive rules of intellectual “property”. Europeans are often mystified at the way Americans can be so tolerant of racial or religious hatred but freak out about sex or nudity (“Americans are from Mars, Europeans are from Venus”). It’s less a difference of principle than a difference of priorities.

Australia, as usual, sits somewhere between an American and a European sensibility. It’d be nice if that meant copying the freedoms of both rather than their phobias.

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