New Threats to Free Thought

In 1990 the French national assembly passed new laws to toughen the existing measures against racism. At the time people were in an uproar over the desecration of Jewish graves in France, and the newspapers were full of concern about France's extremist right wing and the revival of anti-Semitism in Europe and the Soviet Union. So the new legislation surprised no one. But there was something disturbing in it, passed over incidentally, as though hardly worth mentioning, in newspaper accounts like this one: "The measures also outlaw 'revisionism'—a historical tendency rife among extreme right-wing activists which consists of questioning the truth of the Jewish Holocaust in World War II."

Some of those words stir memories: "measures" that "outlaw ... questioning." We have seen that before.

Taken by itself, the French action was a curious and vaguely troubling incident, but little more. The intentions were good, and it is a fact that many and probably most of the so-called Holocaust "revisionists" were Jew-haters and Jew-baiters who were acting in bad faith, and it is a fact also that the Holocaust did happen; so let the matter pass. Fair enough.

No. The French action could not be taken by itself. It was part of a pattern.

In Australia the New South Wales parliament amended the Anti-Discrimination Act in 1989 to ban public racial vilification. Since most people are against racial vilification, most could sympathize with the legislature's intentions. But it was hard to be enthusiastic about the mechanism: "The law invests in the Anti-Discrimination Board the power to determine whether a report is 'fair,' and whether a discussion is 'reasonable,' 'in good faith,' and 'in the public interest.' The Board will pronounce upon the acceptability of artistic expression, research papers, academic controversy, and scientific questions. An unfair (i.e., inaccurate) report of a public act may expose the reporter and the publisher to damages of up to $40,000."

In Austria you can get a prison sentence for denying the existence of the Nazi gas chambers. In 1992 the government, seeking to make the offense clearer, proposed language which would make it a crime "to deny, grossly minimize, praise or justify through printed works, over the airwaves or in any other medium the National Socialist genocide or any other National Socialist crime." In Denmark the national civil-rights law forbids "threatening, humiliating, or degrading" someone in public on the basis of race, religion, ethnic background, or sexual orientation. When a woman wrote letters to a newspaper calling the national domestic-partnership law "ungodly" and homosexuality "the ugliest kind of adultery," she and the editor who published her letters were targeted for prosecution. In Great Britain the Race Relations Act forbids speech that expresses racial hatred, "not only when it is likely to lead to violence, but generally, on the grounds that members of minority races should be protected from racial insults."

In Canada a reputable research psychologist named Jean Philippe Rushton presented a paper in 1989 in which he looked at three very broad racial groups and hypothesized that, on average, blacks' reproductive strategy tends to emphasize high birthrates, Asians' tends toward intensive parental nurturing, and whites' tends to fall in between. The man was vilified in the press, he was denounced on national television (to his face) as a neo-Nazi, and his graduate students were advised to find a new mentor. That was not all. The Ontario provincial police promptly launched a six-month investigation of Rushton under Canada's hate-speech prohibition. They questioned his colleagues, demanded tapes of his debates and media appearances, and so on. "The provincial police officially assessed the question of whether Rushton might be subject to two years in prison for such actions as 'using questionable source data.'"

So it goes in France, Australia, Austria, Canada—and the United States. In the United States, however, there is an important difference. The U.S. Constitution makes government regulation of upsetting talk difficult. There is not much the government can do to silence offensive speech or obnoxious criticism. In America, therefore, the movement against hurtful speech has been primarily moral rather than legal, and nongovernmental institutions, especially colleges and universities, have taken the lead. All around the country, universities have set up anti-harassment rules prohibiting, and establishing punishments for, "speech or other expression" (this is from Stanford's policy, adopted in 1990 and more or less representative) which "is intended to insult or stigmatize an individual or a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation or national and ethnic origin."

Those rules are being enforced. One case became particularly well known, because it generated a lawsuit in the federal courts, which eventually struck down the rule in question. At the University of Michigan, a student said in a classroom discussion that he considered homosexuality a disease treatable with therapy. Now, as of this writing the evidence is abundant that the student's hypothesis is wrong, and any gay man or woman in America can attest to the harm that this particular hypothesis has inflicted over the years. But the people at Michigan went further than to refute the student or ignore him. They summoned him to a formal disciplinary hearing for violating the school's policy prohibiting speech that "victimizes" people on the basis of "sexual orientation."

What is disturbing is not just that this sort of thing happened, but that it happens all the time now and intellectual opinion often supports it. The Michigan incident was just one among many. In 1990 at Southern Methodist University, "five white students and one black student reported to university officials that a freshman had denounced Dr. [Martin Luther] King as a Communist and had sung 'We Shall Overcome' in a sarcastic manner during a late-night discussion in a residence hall." A university judicial board sentenced the offending freshman to thirty hours of community service at minority organizations.

Cases of that kind are controversial—off campus, at least—and are drawing their share of outrage from civil libertarians. However, to understand the French and Australian and Michigan incidents as raising only civil-liberties issues is to miss the bigger point. A very dangerous principle is now being established as a social right: Thou shalt not hurt others with words. This principle is a menace—and not just to civil liberties. At bottom it threatens liberal inquiry—that is, science itself.

If that statement sounds too alarmist, I won't contest the point here but will ask you to read on. I will ask you, also, to remember this: In English we have a word for the empanelment of tribunals—public or private,...