The Rise of Extremism in Europe: Speeches Harming Racial Justiceby Rym Khadhraoui
The U.S. elections results has led to pervasive comparisons between the victory of Donald Trump and the vote supporting Brexit, which occurred the same year. Both were seen as symptoms of the rise of outdated and dangerous ideas, and, more broadly, a worrying political and social context in Europe and the U.S. When looking at the old continent the expansion of far right parties is undeniable. Whether it is in France with the National Front, in Netherland with Geert Wilders or in Germany with AfD, the political rhetoric focuses on the refugees crisis and on the threat of Islam. This is a focus also adopted by the new Administration in the U.S, through the presidential campaign and recurrent statements of the actual President. Speeches are where part of the harm is done, and where political forces from both side of the Atlantic Ocean find their common ground. As a far-right party in Germany claimed after the U.S. Executive Order on travel restrictions: “for the first time ever one can say from a nationalist perspective: keep going, USA." And because Europeans far right parties see in Trump a concrete realization of their political goals, the U.S. opponents could find inspiration in the European human rights framework, especially regarding hate speech.
Human rights protection in Europe on a regional level is mainly enforced by the European Court of Human Rights (ECHR). This Court is based on the European Convention on Human Rights of 1947 adopted within the scope of the Council of Europe, an entity independent from the European Union (Russia and Turkey are members). While the difference of strength and legitimacy between the ECHR and the U.S. Supreme Court is substantial, some questions about the role of the judiciary are shared: how do and should Courts react to political public discourses that are harmful to a particular racial or religious group? What can a regional entity do against hate speech from political officials?
In a comparison between U.S. and Europe, Erik Bleich analyzed the opposition between freedom of expression and racist hate speech: “in the USA, it is virtually impossible to secure a conviction for racist expressions—including a cross burning—unless the words provoke immediate violence or constitute a direct threat. In most European jurisdictions, inciting racial hatred is viewed as a danger that may be penalized, even if it amounts to no more than a book that questions the Holocaust.”
One explanation for these divergent judicial views could be that the regional priorities in human rights protection differ. As explained by the institution itself, the ECHR was born in the aftermath of Nazism, to build an institutional framework grounded in the freedom of expression to guarantee a diverse society while proscribing speech that is offensive and contrary to the Convention. In a time when some are comparing contemporary Islamophobia to the Anti-Semitism of the 1930s, the original goal of the Court as to prevent racist political speeches from becoming racist political acts remains the same. In a case before the ECHR involving Jean-Marie Le Pen, former President of the National Front, for stating that “the day we [France] will not have 5 million, but 25 million Muslims, they will be the one ruling”, the ECHR balanced Le Pen’s freedom of expression with the “sentiment of rejection and hostility” toward Muslim communities in France that such a statement from a powerful politician can create.
By preventing hate speech, the aim is to prevent an idea to become a future act. In a recent declaration, the European Court acknowledged that hate speech is rising in Europe and that those forms of speech should be excluded from the protected scope of freedom of expression. Legally, the Court based those decisions on the Convention, on either the provision allowing restrictions on freedom of expression under certain conditions, or on the prohibition of abuse of rights.
Restrictions on freedom of expression in Europe were originally mostly used to prohibit the denial of Shoah- or Negationism, to prevent the denial of a crime against humanity, the disqualification of victims’ stories and the attempt to rehabilitate the Nazi regime. The strength of Shoah in the common memory of Europe as a regional - trying to be unified – entity was deemed too crucial to let those harmful discourses gain credit and publicity. In our post-9/11 world, Europe is facing new challenges as a community of diverse people and values, mixing the historical racism experienced daily by post-colonial immigrants and the new waves of refugees from Middle East and Africa. Politicians have found a perfect victim to portray as a threat and gather their voters. The European Court therefore adapted its interpretation of the Convention to this new context, by, for example, condemning a Belgian politician for his campaign, claiming to oppose the “islamization” of Belgium. The legal arguments were the incitement to racial and religious hatred, the protection of the public order and the rights of others, especially Muslim immigrant communities.
The U.S. nowadays is also particularly facing racist speech, that sometimes evolved in racist decision as seen with the “Muslim Ban”. The specific U.S. understanding surrounding freedom of expression remains essential to the country; and give more strength to the right of someone to express an idea rather that the potential harm on a community. In both Europe and the U.S., the challenge here is to maintain a diversity of ideas and political views while protecting communities when the freedom of speech is used to harm, rather than to share.