Eugene Volokh makes a powerful argument about the meaningless and arbitrary distinction between “fair criticism” and speech that is mocking or hurtful. He quotes Anthony Comstock, one of the most notorious censors in American history, trying to make the same distinction:
There is a vast difference between [a “respectable infidel” who simply expresses his disagreement on religious matters] and the one who seeks by scoffs and sneers to wound the feelings of those who differ from him, or who makes a living by blaspheming the name of God, and discusses those subjects that most closely concern the interests of the soul so as to provoke laughter and applause from thoughtless ones.
And Volokh notes:
Seeing this, I was struck by how similar it is to some of the arguments I’ve heard in favor of what I’ve called the “new anti-blasphemy laws,” in America and elsewhere — arguments that likewise often deploy the same distinction between “respectable” criticism of religion, which would supposedly remain protected, and “scoff[ing] and sneer[ing that] wounds the feelings.” The distinction was unadministrable and unjustifiable then (as the U.S. Supreme Court ultimately realized in Joseph Burstyn, Inc. v. Wilson (1952)), and it remains so today. But it’s worth remembering how it was deployed in the past, and how much speech has been restricted in its name.
Indeed, the law struck down in Burstyn sounds very much like those laws I’ve been criticizing in other countries, laws that prohibit speech that “abuses” or “insults” a religion. From the ruling:
New York’s highest court says there is “nothing mysterious” about the statutory provision applied in this case: “It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule . . . .”
And the court rightly concluded:
Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the “sacrilegious” test, in these or other respects, might raise substantial questions under the First Amendment’s guaranty of separate church and state with freedom of worship for all. However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.
Quite right. And as I said in a comment a couple nights ago, I am struck by the similarities between those who have defended this type of censorship with the arguments made by Robert Bork about the need for cultural and moral censorship in America. In Slouching Towards Gomorrah, he makes virtually identical arguments about the need to restrict individual free speech rights in order to have a more ordered and civilized society.
“The alternative to censorship, legal and moral,” he writes, “will be a brutalized and chaotic culture, with all that that entails for our society, economy, politics, and physical safety.” He further says, “Without censorship it has proven impossible to maintain any standards of decency.” Yet those who defend hate speech laws as necessary to prevent the degradation of society are likely to laugh at Bork’s argument that moral restrictions on free speech are necessary to do the same thing. I say they’re both wrong.