Why Do We Need Human Rights? (31): Or Maybe We Don’t? – Exploring the “Dark Side” of Human Rights

Do human rights have a “dark side“? There are some specific complaints about the nefarious or even evil consequences of certain particular human rights, and there are complaints about the harmful consequences of human rights in general. The former complaints are a lot easier to deal with, and I’ll start with those.

Complaints about particular human rights

Freedom of expression is believed to be harmful because it protects pornography, which in turn leads to gender based violence and gender discrimination. Furthermore, it implies the free dissemination and reproduction of hate and it therefore fosters violence, racism and different kinds of “phobias”. And, finally, it allows blasphemy and hence it encourages religious tensions and violence.

Those human rights that guarantee a fair trial, and more particularly the rights of defendants, make it more difficult to have an effective criminal justice system. As a result, it becomes more likely that dangerous criminals return to society. Also, the right to life makes it harder to justify capital punishment, with the same result.

The right to privacy can support gender subordination and make it more difficult to tackle domestic violence.

Some human rights can even bring us to the edge of destruction (a ban on torture makes it impossible to deal with ticking time bomb terrorists).

Such specific complaints against particular human rights can be countered rather easily. Most if not all of the harmful consequences of rights are violations of other rights. If we grant that rights are limited by other rights, then we can balance rights against each other. Or one can argue that the supposed harmful consequences of some rights will (almost) never occur, or that they aren’t really harmful at all. For example, if we don’t torture we won’t make terrorism more likely. And some forms of pornography or hate speech aren’t really very dangerous.

Complaints about human rights in general

A lot harder to answer is the challenge that there’s something wrong, not with particular human rights, but with human rights as such. This challenge can take different forms.

Human rights are supposed to be the fig leaf of international intervention and modern imperialism. The anti-Taliban intervention in Afghanistan, for instance, was partly a reaction to 9-11 but it was also justified by reference to the brutal rule of the Taliban. It may be a meager defense, but if we were to reject everything that can be abused we wouldn’t have much left. The question then becomes one of degree: are human rights more likely to be abused for imperialist reasons, or more likely to serve the beneficial goals for which they are intended? And what is the probable balance of good and bad that will result from those different uses of human rights? I think the good that comes from human rights clearly outweighs the bad, and that the bad will happen anyway, whether or not people use the excuse of human rights while making it happen.

There’s a similar claim about the inherent cultural imperialism in human rights. Human rights, even when they’re not used to justify war, military intervention or territorial occupation, are still imperialist because they imply the imposition of western values on other cultures. Human rights are then believed to be a form of cultural aggression and part of a neocolonial effort to extend the individualist, secular and modern culture of the West elsewhere in the world, destroying the indigenous cultures in the process. This claim, however, is based on some rather shaky foundations: that human rights can only be found in the West, that intercultural transmission is necessarily aggressive, one-sided and involuntary, that human rights express a culture, that human rights are individualist etc.

Then there’s the claim that the abstract nature of human rights removes the personal and the specific from cases, and removes therefore the things that make us care about cases. I dealt with this complaint before, so I won’t repeat myself. The core of the reply would be that one approach – an abstract one – doesn’t exclude a more contextualized and specific one. For instance, one can talk about the abstract desirability of the right not to be tortured and about the errors in reasoning of those arguing for exceptions to this right, and at the same time one can talk about specific cases of torture.

Another complaint is the classic marxist one: the individualism of human rights spills over into egoism and capitalist greed. Again, I refer to an older post for a detailed reply. Suffice it to say that human rights as claims on others can indeed lead to divisiveness and a lack of social harmony, and that human rights as claims for your rights can promote selfishness. These tendencies, however, are canceled by the more communitarian nature of other uses of rights (religious liberty, tolerance, freedom of association etc.).

Still another complaint is about the victimization inherent in human rights. Focusing on people’s human rights violations means focusing on their status as victims, and talking about people as victims is somewhat infantilizing. Human rights activists do indeed often view non-whites, non-males and non-westerners as passive victims, incapable of agency, waiting to be rescued by do-gooders. This obviously reinforces their subordination. (More on self-defeating human rights policies here). This complaint is more about the way people act when trying to promote human rights than about human rights as such.

A final complaint about human rights is that they give people false hope, at least those people in the poorest countries of the world. What is the point of having a right when you don’t have the means to realize that right, when there’s no way of securing the things you have a right to? For billions of people all over the world, the right not to suffer ill health, poverty or homelessness is just a sick joke. Why should we have rights when there’s no way to make them real? Good luck going to a judge in a famine infested country and asking him to respect your right to food. And even if we can make our rights real, it’s better to use politics, science and economics than abstract rights that don’t tell us how to move forward. The reply to this complaint would focus on the benefits of having rather ambitious goals, even if the complete realization of those goals is not yet possible. At least one can measure progress. And it would also focus on the realistic nature of most human rights goals. For example, it’s simply not true that poverty eradication is utopian.

More posts in this series here.

What Are Human Rights? (35): Freedom of Expression is Freedom of What Exactly?

Another way to frame the question in the title of this post is: what falls under the header of “expression”, and what not? Only if something is justifiably called expression can it enjoy the protection of the right to free expression. I’ll argue below that “expression” covers more actions than the ones we intuitively classify under that concept. Hence, freedom of expression protects more than we think it protects.

And yet, it’s not because something is expression that it automatically enjoys protection. Some actions which we readily classify as “expression” are not and should not be protected by freedom of speech. In other words, freedom of expression covers more and at the same time less than we think.

The obvious type of action that is covered by the right to free speech, and the type that represents the large majority of expressive actions, is speaking and writing in day-to-day language. Such actions enjoy a prima facie protection by the right to free speech. Nothing special about that. However, the right also applies to other expressive actions, ones that do not involve speech or writing in ordinary language:

  • some non-linguistic means of expression, such as visual art
  • some forms of protest such as the burning of a draft card, a flag or a cross
  • pornography
  • the display of symbols (e.g. a swastika)
  • etc.

These types of expressive actions can also claim protection in certain circumstances.

So, some things which are not readily identified as speech are nevertheless considered as speech acts and receive some form of protection from the right to free speech.

On the other hand, some actions that are unmistakably speech – such as hate speech, incitement etc. – are often justifiably excluded from the protection of the right to free speech.

Free speech therefore covers at the same time more and less than a cursory examination would conclude. However, the broad definition of speech that expands speech beyond mere linguistic acts does create a problem. Non-linguistic expressive actions are hard to delineate. All actions can include an expressive component, and it’s often difficult to determine when an agent intended to convey a message through her actions. So the concept can become too broad, and we risk, as a result, that freedom of speech covers all actions and becomes indistinguishable from freedom tout court. That can’t be the purpose.

Notwithstanding this problem, it’s obvious that not all linguistic or non-linguistic expressive actions should enjoy protection by the right to free speech. Terrorism is certainly an expressive action, but no one would claim that it should be protected by freedom of speech.

Beside the “freedom of what?” question, there’s another interesting one: “freedom from what?” Usually, freedom of expression, like many other type of freedom, is believed to be primarily or exclusively a freedom from government interference with speech. While that’s an important dimension of freedom, it’s not the only one. Rights have a horizontal as well as a vertical dimension: citizens can also violate each others rights, and hence freedom of expression for example is also a freedom from interference by fellow-citizens. More on the dimensions of human rights is here. More on free speech here.

Why Do We Need Human Rights? (20): Does Polarization Invalidate Freedom of Speech?

(Perhaps it’s best to read this post together with a previous one dealing with a similar topic).

One of the justifications of the right to free speech is an epistemological one: free, equal and massive participation in public discourse produces better decisions and opinions because it allows for

  • the appearance of a large number of arguments and perspective and
  • widespread criticism and examination of possible decisions and opinions.

Looking at possible decisions and opinions from a variety of perspectives and listening to a maximum number of critical arguments for and against, improves the quality of decisions and opinions. Freedom of speech is not, in theory, necessary for this improvement, since a single talented individual can, in isolation, imagine perspectives and counter-arguments. However, better than to trust the imagination and the limitless neutrality of an individual, it is better to use the resources of the crowd, and there is no better way to do that than to protect freedom of speech as an equal right for all. This idea has been called the marketplace of ideas.

An added advantage of involving the crowd in public discourse is that individuals will anticipate criticism and will therefore make better use of their imagination and improve their arguments even before entering the quality enhancing public discourse. (I’ve made a somewhat more profound version of this argument here).

Intuitively, one would expect that this marketplace of ideas, protected by freedom of speech, should result in some convergence: bad arguments and weakly argued opinions and decisions would lose support in public discourse, because they are publicly shown to be bad or weakly supported. The majority of people should then gravitate towards the better opinions. However, we often see the opposite, namely polarization, i.e. increasingly sharp divisions in society with groups having extreme opinions that are strongly held and that aren’t thoroughly examined. Often, the strength at which those opinions are held bears no relation to the strength of the arguments in favor of them. That’s the marketplace of ideas equivalent of harmful but popular products.

We then have to ask ourselves which of these two statements is true:

  • Polarization is the result of an insufficient or inefficient functioning of freedom of speech and public discourse. In which case we can hold on to our epistemological justification of that right.
  • Or polarization happens notwithstanding freedom of speech. In which case we seem to lose a possible justification for freedom of speech.

“Both” is probably the best answer. Freedom of speech facilitates public discourse and improves the quality of it, but only if it is used. If people decide not to use freedom of speech, and decide not to listen to opposing views or to argue with opponents, then this freedom can’t improve public discourse. Yet the absence of a proper use of this freedom does not invalidate the freedom itself. It does make it harder to justify this freedom as something beneficial. If many people don’t use freedom of speech to improve public discourse it becomes more difficult to argue that we should protect freedom of speech because it improves public discourse. And yet, this doesn’t undermine the theoretical or philosophical argument that freedom of speech can – in theory – improve public discourse. So the inherent desirability of free speech remains, even if the practical desirability is weak. (Note that there are other possible justifications for freedom of speech, some of which have nothing to do with the topic we’re discussing here).

Also, we often see that polarization is the result of an insufficient or inefficient functioning of freedom of speech and public discourse. Cass Sunstein, for example, wrote about the “law of group polarization” and showed that polarization is to some extent the result of exclusively intra-group deliberation (climate change deniers who discuss their views only with fellow-deniers tend to come out of these discussions with an even stronger version of their initial opinions).

And finally, we should be careful in our estimates of polarization. Some high profile cases of polarization can give the impression that polarization is rampant. But people disagree about the extent of polarization. It all depends what topic you’re dealing with, and things differ from country to country as well. Also, the political class can make polarization look more common than it is among the general population. If polarization isn’t as widespread as we think it is, then its impact on freedom of speech is also smaller.

More on polarization here.

Freedom of Expression and the Internet







Limiting Free Speech (41): Crush Videos




















Why Do We Need Human Rights? (13): Why Do We Need Freedom of Expression?

Here’s a list of some of the traditional rationales for the right to free speech (Eric Barendt for example has identified some of these in his book “Freedom of Speech“):

1. Freedom of speech serves the search for truth

There’s a long tradition in philosophy claiming that freedom of speech and the equal right of everyone to express himself or herself in public on any possible topic improves the quality of opinions and knowledge. Rawls, Mill and Kant for example have fleshed out this claim. In the words of Alexander Meiklejohn:

Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. (source)

Or in the words of Justice Oliver Wendell Holmes, in Abrams v. United States (dissenting):


2. Freedom of speech serves individual self-fulfillment

People who can express themselves freely are better placed to develop their personality and identity. When you can say what you think and believe, you can better give shape to your thoughts and beliefs. Also, thoughts and beliefs depend heavily on the possibility to receive information, which is something that in turn depends on free expression. On top of that, persuasion is an important element of wellbeing: people who can persuade others feel better about themselves. And when they can persuade others, they can form communities and associations, and belonging is another important aspect of wellbeing and self-fulfillment. Finally, when the right to free expression is respected, people can better enjoy culture, education and other things that improve wellbeing.

3. Freedom of speech improves the functioning of democracy

Even for a minimal democracy (regular, free and fair elections for representatives) freedom of speech is very important. Candidates have to be able to advertise themselves and their policies and argue amongst themselves. Lobbyists should be allowed to make their case (publicly and transparently, of course). Etc. But democracy should be more than that. Ideally, democracy requires deliberation among the people on the best possible policies. It’s obvious that this deliberation requires free speech. More on democracy and free speech here.

4. Freedom of speech is a check on the corruption of power

People have to be able to receive information about the functioning of government. Free speech is a necessary prerequisite of government accountability. Freedom of information acts are just as much an element of free speech as a free press, and both are required to counteract corruption and abuse of power. At the margin, elements of free speech such as freedom of information, a free press and the right to protest can make the difference between freedom and tyranny, but they also limit the risk of lesser evils such as administrative corruption, betrayal of election promises, covert government activities etc.

5. Freedom of speech is a right that is required for the protection of other rights

Historically, it has been the case that other rights have depended on freedom of speech for their full protection. The civil rights movement and the struggle against racial discrimination in the U.S., for example, would have been impossible without freedom of speech (which doesn’t mean that the right to free speech of the proponents of equal rights was never restricted). Equally, the feminist struggle for equal voting rights for women was made much easier by freedom of speech. And finally, the right to religious freedom cannot be separated from freedom of speech. And there are many other examples.

6. Freedom of speech serves prosperity

Without freedom of speech there is less innovation and less trade. Scientists who develop new products or services need freedom of speech, and business people have a lot of difficulties trading or advertising without it. Hence, it can be said that economic growth is fostered by free speech. But free speech doesn’t only promote prosperity in general (on average); it also benefits the poor. The squeaky hinge gets the oil. If the poor aren’t able to make their case, they won’t get help.

More on freedom of expression.










Limiting Free Speech (38): Cheering on a Criminal














Limiting Free Speech (34): Pornography and Sexual Violence




Another study:




Freedom of Expression, or a Duty of Expression?

I often have the impression that people transform the right to free expression into a duty to free expression. And I don’t think that’s a good thing. For example, Muslims in western countries are often told that they should distance themselves from the more violent members of their religion. We require them to speak out against Muslim terrorism.

Another example: politicians, especially in the U.S., are required to speak out on a number of subjects, e.g. abortion, same-sex marriage, their faith in God etc. As if it would be a disaster to elect a politician who happens to doubt about abortion. After all, many people do (myself included).

A somewhat exaggerated view on democratic transparency is undoubtedly a small part of the explanation for this. Democracy can’t function without public knowledge of politicians’ opinions, or without some sense of what our fellow citizens believe (part of democracy is group formation, and group formation is based on discussion and persuasion; and you can’t persuade someone if you don’t know what he or she believes).

But the most important cause of this “duty of expression” is, I think, the manichean nature of contemporary politics. Every issue is painted in black and white, good and evil, for or against. We force people to express themselves on issues so that we can see if they are with us or against us. And if someone expresses him or herself in a nuanced way we automatically assume that he or she takes a position opposite from our own. For example, if Muslims reject Islamic terrorism but at the same time point to the situation in Palestine, we assume that they really think terrorism is OK, or justifiable given certain circumstances. We can’t accept muddled or nuanced middle ground positions, or positions which change according to the circumstances. Gray isn’t an option.

Clarity, simplicity and certainty are important human objectives, but often they aren’t appropriate in thinking. Of course, sometimes manicheism is the only possible position: you either believe the holocaust is a fact of history or you don’t; there’s no middle ground, and those who don’t believe in it are either stupid or evil. But when it comes to political or moral opinions (rather than facts), those who really think about them often find themselves occupying a gray, complex and uncertain position.

I suspect that the difficulty to let go of manicheism and to accept uncertainty and nuance has something to do with the nature of democratic politics. It’s hard to vote for nuance, and easy to vote for or against a clear and simple proposition. And simple propositions get more attention, sell better and make it easier to mobilize large constituencies (see the cartoon below). But then again, when we look at political reality, manicheism is much more common in autocratic societies. The public debate on issues which is made possible by democratic societies forces nuance to appear.

The difficulty to let go of manicheism also has something to do with the fear of the other extreme: the paralysis that follows from endless nuancing and thinking. Politics is a realm where decisions have to be taken, contrary to philosophy where thinking is unending in principle.

However, it doesn’t follow from this that decisiveness has to be manicheism. Decisions can be based on nuanced thinking. The risk of paralysis is averted by the realization that our decisions, often taken under the pressure of urgency, are necessary yet provisional, based on the best thinking available at the time, and open to revision when time has improved our thinking.

Limiting Free Speech (30): The Heckler’s Veto








What is Democracy? (43): A System Characterized by Free Speech

The principle of the freedom of speech springs from the necessities of the program of self-government. It is not a Law of Nature or of Reason in the abstract. It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage. A. Meiklejohn (source)

Democracy is a power struggle. The participants in this struggle have to be able to express themselves, to present themselves to the electorate, to create a distinct profile for themselves, and to make the electorate familiar with their political program. That’s one reason why democracy needs freedom of expression. The participants in the power struggle also have to be able to organize and associate in a group that is free from government control, because this allows them to gather strength and have a more influential voice. So they need the freedom of association and the separation of state and society. And for the same reasons they have to be able to meet and demonstrate. So they also need the freedom of assembly. If they want to organize, associate and assemble, it’s because they want to convince new people to join them. And they can’t do that without free speech.

Without the guaranteed right of all citizens to meet collectively, to have access to information, to seek to persuade others, as well as to vote, democracy is meaningless. Democratic rights, in other words, are those individual rights which are necessary to secure popular control over the process of collective decision-making on an ongoing basis. David Beetham (source)

The U.S. Supreme Court (SCOTUS) as well has long recognized that the facilitation of self-government is one of the main goals of free speech and the First Amendment. Take, for example, Mills v Alabama:


Or Brown v Hartlage:

First Amendment [is] the guardian of our democracy. That Amendment embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad, and between candidates for political office. (source)

Or Roth v United States:


There’s also Justice Louis D. Brandeis famous (concurring) opinion in Whitney v California, in which he described the democratic function of freedom of speech. According to Brandeis, every citizen has the right to

endeavor to make his own opinion concerning laws existing or contemplated, prevail. (source)

Brandeis believed, correctly I think, that free speech is necessary for democracy in three ways:

  • to inform the people about the workings and policies of the government (a free press being an important part of freedom of speech)
  • to inform the government of the the will of the people (an election – or “vote” – being the voice of the people)
  • to allow the people to deliberate, to discuss government policy and the merits of representatives.

Why Do We Need Human Rights? (9): Free Speech, Democracy, Socrates and the Search for Truth

Just a few additional remarks on the way in which the equal right to free speech, and democratic deliberation based on this right, improve the quality of “knowledge” and of political decisions. (Continuing where this and this post left off).

Of course, “knowledge” and “truth” not in any absolute or objective sense, but in the sense of the best kind of thinking a given society at a given time can achieve.

Before arguing how Socrates is relevant in this discussion, allow me to cite a few 20th century thinkers. Justice Louis Brandeis, in his concurring opinion in Whitney v California, stated that the

freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. (source)

Alexander Meiklejohn:




The freedom to speak, the equal freedom to speak, and massive use by large numbers of people of this freedom, result in the appearance and confrontation of a large number of points of view and of perspectives on an issue. It means that a proposal or opinion or policy is subjected to intense scrutiny and criticism. If it survives this, it is bound to be of better quality. Unfounded opinions or opinions that are open to sound criticism are not likely to survive this process. Free speech in general, and free speech as it is implemented in democratic decision procedures, initiate such a process. That is why opinions in a free society and political decisions in a democracy have what we could call an epistemological advantage. They are of better quality. At least as long as we contemplate the ideals. Real free societies and real democracies may fall significantly short of this ideal.

Again, epistemological advantage doesn’t equal “truth” and “knowledge”; just the best thinking we can get. Unfortunately, I’m not being very original here. This is obvious when we return to the Ancient Greeks. The Athenians especially believed that democratic deliberation (which for them was the same as free speech) was essential for wise decisions because it sheds the light of diverse opinions and criticism on policy options. Pericles, in his Funeral Oration, as recorded by Thucydides, said:


None of this is limited to highly participatory systems of direct democracy such as the Athenian democracy, or to politics. The process can occur in modern, representative democracies and in any setting, political or non-political, guaranteeing free and equal speech. The scientific community for example heavily relies on peer participation. It’s fair to say that freedom of speech is essential for any collective search for of or advancement towards truth. In fact, the word “collective” is superfluous here, because the process is by definition collective. No one thinks more or less correctly in isolation.

We normally assume that an ideally conducted discussion among many persons is more likely to arrive at the correct conclusion (by a vote if necessary) than the deliberations of any one of them by himself. Why should this be so? In everyday life the exchange of opinion with others checks our partiality and widens our perspective; we are made to see things from their standpoint and the limits of our vision are brought home to us … Discussion is a way of combining information and enlarging the range of arguments. At least in the course of time, the effects of common deliberation seem bound to improve matters. John Rawls

I know, I know: “what about Socrates!”. Well, the Socratic method is a type of discussion with adversaries which is intended to expose the adversaries’ pretensions, prejudices, dogmas and conventional beliefs. In other words, it targets opinions which are accepted as such, without having first passed through a process of examination and criticism. Socrates is a one man democratic agora, launching different criticisms and counter-arguments at an opinion, and shining the light of many perspectives.

Hate (5): Why Do We Need Hate Crime Laws?

We punish the crimes of murder, kidnap, and battery. Why isn’t that enough? … It strikes me as weird that the mere utterance of a racial slur during a violent act automatically makes it worse. Ta-Nehisi Coates (source, part of this quote is actually Coates citing someone else)

Doesn’t the concept of hate crime imply a punishment of expression and thought? And isn’t it therefore essentially a thought-crime, and as such objectionable to people who cherish freedom of thought and speech? Shouldn’t someone’s convictions and expressions be immaterial to their punishment? And shouldn’t we just focus on what someone did rather than what he or she was thinking or saying when he or she did it?

Not really. Intent, motive and state of mind have always been crucial to punishment, hence the difference between premeditated murder and manslaughter. Killing or hurting someone because of race, gender or sexual orientation is worse than mere killing or hurting, and should incur a more severe punishment because it is meant not only to harm the victim but to terrorize an entire community.

Limiting Free Speech (24): Political Correctness

Political correctness (or PC) is a form of speech that is characterized by the willingness to avoid offense to certain groups in society, often groups which have a history of suffering and rights violations.

It is a form of speech that excludes certain concepts and phrases that are thought to be expressions of hatred, discrimination and rights violations. Such expressions, it is believed, serve to keep these violations alive and well, and protecting human rights therefore requires the exclusion of these expressions. Examples of these expressions and concepts or phrases are “nigger”, “women should play the main role in the household”, “black people are genetically less intelligent than white people”, “affirmative action is discrimination of whites”, the systematic use of “he” to describe a person, or of “man” to describe a member of the human race etc.

Hence, political correctness is a limitation of free speech that is believed to be necessary in order to protect other rights. Politically incorrect speech is a strategy in the continuation or reinstatement of rights violations, for example discrimination of women, racism, or unequal opportunities. Language determines the thoughts, mentalities and actions of both the speakers and listeners. For example, convictions regarding negative stereotypes are facilitated by the availability and widespread use of pejorative and stereotypical labels. A user of these labels will be confirmed in his or her believes, and a target of these labels will suffer a loss of self-esteem and will, as a result, find it difficult to escape from his or her unequal position in society. Hence, using politically incorrect stereotypes contributes to the continuation of inequality. On the other hand, “outlawing” such stereotypes forces people to think about how they describe other people and forces them to focus on individual characteristics rather than stereotypes.

Proponents of PC believe that language should be used for good purposes rather than bad ones. They don’t want language to be a tool to oppress. They seek cultural change through linguistic change, but this has an impact on the freedom of speech: certain types of expressions, phrases or concepts are off limits according to the proponents of politically correct speech, and other types are mandatory. Speech should be as inclusive and neutral (gender neutral, race neutral etc.) as possible. Hence constructions such as “s/he”, “African-American”, “holiday season” instead of Christmas etc.

PC can be criticized in several ways. I just pick two types of criticism that seem most convincing to me. Politically correct speech is a kind of orthodoxy or an example of dogmatic thinking or group thinking, which is why the concept of PC is mostly pejorative. Politically incorrect speech on the other hand can be seen as rebellious, original and individualistic. It can be very useful in identifying hidden assumptions, prejudices etc. Of course, political incorrectness can become a prejudice in itself, obscuring the need for real debate on some human rights issues.

Whether or not PC is justified depends on the effects of language on rights violations. There is certainly some effect. Especially in the early, formative years, people can be influenced by speech, and can grow up to become persons with mentalities that are inimical to human rights. And they will certainly act on these mentalities. But I believe that the proponents of PC overstate the importance of the causal link. It’s not true that sexist or racist language always and necessarily produces sexism and racism. These rights violations have a myriad of causes. Hence it is dangerous to identify certain forms of speech as the main causes, and consequently “outlaw” them, perhaps not legally but morally. This can result in cultural communism, a totalitarian and intolerant “regime” censoring and punishing dissent and “heresy”. It is not unheard of that people lose their jobs and/or reputation because of a sin against PC.

By the way, one particularly funny instance of political correctness are the annual arguments about Christmas. Christian traditionalists and PC people who think that a Christian holiday may be an insult to other religions, outdo each other in silly talk.

Limiting Free Speech (14): Religious Education in Public Schools

There can be nothing wrong with educating children about religion. And I say this as an agnostic. But religious education must include information about all the world’s main religions, and about atheism as well. And it also shouldn’t avoid mentioning some of the problems caused by religion. Children benefit from seeing all sides of the coin.

Even public schools, i.e. schools instituted, organized and funded by the government, should provide this kind of religious education. Banning religion from public schools is wrong, but not because it would be a limitation on the freedom of speech of religions, as some religious activists claim. It’s not because you’re not allowed to speak in a certain place that you’re not allowed to speak (freedom of speech does not include the right to say anything anywhere; if it would, then newspapers would be forced to print everything everyone asks them to print). Such a ban is wrong for another reason: it would be stupid and a disservice to children.

It would be politically and legally wrong to have public schools teach only one religion, or emphasize one religion. The separation of church and state does not allow agencies of the state – such as public schools – to be hijacked by a particular religion, even if it is the religion of the majority of citizens (I would even say, especially when it is).

If this were allowed, then a religion could then use its privileged position to compete unfairly with other religions, and the result would be the abolition of religious freedom. The choice of religion would then no longer be a free one. Children would be led to one religion. Rather than complete information on all religious options, necessary to make an educated choice between religions, children would have a one-sided view on religion.

For the benefit of their students, private schools are of course also advised to teach all religions. But since many of these private schools are religious schools, it is only fair to allow them to focus on their own religion. It would indeed be an unjustified encroachment on religious freedom if religions and churches were not allowed to organize their own system of education according to their own rules (even if it includes teaching that Darwin was wrong and that Dinosaurs and men walked the surface of the earth together – but evidently they wouldn’t do their pupils any favors).

As long as parents have a choice to send their children to such a religious school or to another, public school, then there is no problem. But this must be a real choice of course. If the public schools are of inferior quality, or difficult to reach, then there isn’t really a choice.

School prayer is quite another matter. Praying is not learning, and the demand of inclusiveness mentioned above does not appear to work in the case of prayer. Starting lessons with different prayers of different religions seems awkward. Hence, school prayer in public schools looks like the kind of hijack that is contrary to the separation of state and church.





  • It harms the freedom of speech of other religions.









Limiting Free Speech (2): Holocaust Denial

In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.

What is Holocaust denial?

Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:

  • The Nazi government of Germany had a policy of deliberately exterminating the Jews
  • Over five million Jews were systematically killed by the Nazis
  • The extermination was carried out with tools such as gas chambers.

Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.

Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.

Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.

How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?

Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.

There are a few possible kinds of justification:

1. Antisemitism

There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.

However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.

The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.

One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.

In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.

2. Offensive speech

Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.

3. Libel

A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.

4. Democratic self-defense

Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.

Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.

To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:

One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls

You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws.

5. The defense of Israel

Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.

However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.

6. The special case of Germany

In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.

7. The interest of historical truth

Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.


There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.

Countries with laws against Holocaust denial

Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).

Limiting Free Speech (1): Introduction














Legal rules on religious freedom

Article 18 of the Universal Declaration of Human Rights states:



The First Amendment of the U.S. Constitution states:




Importance of religious freedom



Problems with religious freedom



Separation of state and religion









Separation of politics and religion?

