Free Speech in Europe Isn't What Americans Think
European employers have been told they may ban the hijab provided they ban other visible signs of political, philosophical or religious beliefs, a form of neutrality that wouldn’t wash in U.S. employment law. At the same time, Facebook Inc. and Twitter Inc. face 50 million euro fines for failing to regulate hate speech to the satisfaction of German authorities, another legal impossibility in the U.S. where the First Amendment protects even hate speech. The two cases show how deep the divergence is between liberal American ideas about freedom of speech and religion and European conceptions of equality.
The hijab case decided by the European Court of Justice was anticipated after a single judge of the court issued an advisory opinion last summer allowing a private Belgian firm to prohibit a female receptionist from wearing a hijab on the ground that the firm had an unwritten (!) rule that disallowed employees from visible displays of their beliefs. The new decision followed roughly the lines of that advisory opinion.
A U.S. court would have wanted first of all to know if the rule was really in existence despite being unwritten, or if it was invented to ban the hijab, which would’ve made it religious discrimination. And it would have allowed such a ban only if it was part of a bona fide occupational qualification for the job, which would only seem to be the case for a hair model.
The European court said that the rule wasn’t direct discrimination because it’s not based on religion. That sounds strange to U.S. legal ears, because the unwritten rule precisely named religion as a basis of the ban.
Then it said the law might be an indirect burden on religion, but that it would be a permissible burden if it was justified by a “legitimate” aim such as projecting corporate neutrality to the public. Again, U.S. law would consider religious liberty to outweigh corporate image.
And herein lies the key philosophical difference. U.S. law, following the logic of the Constitution and American legal culture, considers religious freedom a fundamental right that shouldn’t be violated except under exceedingly rare conditions.
That view is pretty broadly shared across the political spectrum. In the 1960s and ’70s, U.S. liberals emphasized protection of minority religions. Since the 1980s, conservatives have embraced religious liberty as a core value, in recent years more strongly than liberals.
In Europe, by contrast, the freedom to believe may be protected, but the freedom to manifest your religion publicly has much less purchase, especially if you’re a Muslim. Left and center-left Europeans are often willing to see the hijab restricted because they see it as sexist and coercive. And right-wingers frequently see the hijab as a symbol of militant Islam and cultural pollution by immigrants.
On free speech, the U.S. and Europe have also gone different ways. The German minister of justice threatened Facebook, Twitter and Alphabet Inc.’s Google search back in December, telling them they needed to move faster and better to remove hateful posts that violate German law. Now the minister is proposing a new law in fulfillment of the threat.
To Americans, the idea of the government forcing social media to censor posts may seem to resemble China’s internet censorship. Such legislation wouldn’t just be unconstitutional; it would be almost unthinkable.
Facebook and Twitter are private actors who could censor voluntarily under the Constitution -- indeed, their voluntary censorship would itself be protected speech.
But the government can’t order private censorship any more than it can censor directly. That’s because U.S. constitutional tradition treats hate speech as the advocacy of racist or sexist ideas. They may be repellent, but because they count as ideas, they get full First Amendment protection.
Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. This permissive U.S. attitude is highly unusual. Europeans don’t consider hate speech to be valuable public discourse, and reserve the right to ban it. They consider hate speech to degrade from equal citizenship and participation. Racism isn’t an idea; it’s a form of discrimination.
The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly -- so highly that we tolerate speech that might make others less equal.
Europeans value the democratic collective and the capacity of all citizens to participate fully in it -- so much that they are willing to limit individual rights.
The parallels between the hijab case and the hate speech cases are thus very real. Individual rights win in the U.S. Equality and the group win in Europe.
At one time, the different views existed in splendid isolation. Now, the internet and globalization are bringing them into conflict.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Noah Feldman at firstname.lastname@example.org
To contact the editor responsible for this story:
Stacey Shick at email@example.com