Volokh Conspiracy: Censorship envy

1. One reason I broadly oppose governmental restrictions on the expression of ideas even obviously bad, dangerous, and offensive ideas is the phenomenon I call censorship envy: The common reaction that, If my neighbor gets to ban speech he reviles, why shouldnt I get to do the same?

To offer one example, say Congress and the states pass a constitutional amendment allowing a ban on flag burning. It seems to me quite likely, and psychologically understandable, that this will push for greater moves to ban other speech, such as display of the Confederate flag. Such a misplaced desire for equality of repression is a powerful mental force, and its one way in which narrow speech restrictions can end up leading to broader ones.

But beyond this, even if the envy doesnt lead to broader speech restrictions, that itself is dangerous to society. Say (as is likely) that, even if an anti-flagburning amendment passes, any move to similarly ban the Confederate flag fails. Display of the Confederate flag will then likely rankle people even more, creating more offense and more division.

Right now, when people mostly blacks, I suspect are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many people hate flag burning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression.

Yet what would we say when flag burning is banned but other offensive symbols are allowed? We in the majority get to suppress symbols we hate, but you in the minority dont? Our hatred of flag burning is reasonable but your hatred of the Confederate flag is unreasonable?

If you were black and saw the Confederate flag as a symbol of slavery and racism and, rightly or wrongly, millions of people do would you be persuaded by these arguments? Would you feel better about America because of them?

Or conversely, say that a hate speech exception was recognized: Censorship envy would create considerable pressure to likewise create an exception for speech seen as expressing anti-American hatred. Indeed, as I noted before, former congresswomanJo Ann Emerson has already called for an anti-flag burning amendment partly on the grounds that while the First Amendment protects free speech, it offers no protection for hate speech a legal error, to be sure, but if hate speech were indeed unprotected, the congresswomans argument would likely have a great deal of public traction.

2. This is also one of the reasons (though not the only one) why I oppose European-style hate speech laws, bans on Holocaust denial, bans on praising terrorists, and the like, and why I think the recent French crackdown on speech that praises the jihadist slaughters is misguided.

One recurring argument from Muslims who want the cartoons legally suppressed is that European laws prohibit other kinds of speech offensive to other groups for instance, Holocaust denial, which is often restricted chiefly because its seen as implicitly or explicitly anti-Semitic and that Muslims should get the same treatment. In practice, those other prohibitions dont get used that often, and European speech is actually more free than the laws would suggest. Nonetheless, the laws presence does make possible the argument I describe. And I suspect it does make many Muslims feel even more aggrieved than they would be by the cartoons themselves, since they are also now aggrieved by what they see as discriminatorily enforced laws.

Consider, just as one example among many, Norwegian Penal Code 135 & 135a:

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Volokh Conspiracy: Censorship envy