Enfants Terribles

Messrs. Hoffa & Galliano Face Their Critics

Labor Day in Detroit must have a righteous anger all its own. That may explain why Teamster President Jimmy Hoffa – brought in to warm up the crowd for President Obama – ignited a firestorm in the Commentariat on Monday.

For those of you emerging from comas, this was the spark that kindled the first rhetorical highlight of the week:

President Obama, this is your army. We are ready to march. And President Obama we want one thing: Jobs. Jobs. Jobs. Jobs. Jobs. Jobs. Jobs. Jobs. That’s what we’re going to tell him. He’s going to be – and when he sees what we’re doing here he will be inspired. But he needs help and you know what? Everybody here’s got to vote. If we go back and keep the eye on the prize, let’s take these [expletive] out and give America back to America where we belong!

The Sons of Bitches (elided above by the heirs of Katherine Graham) were not amused.

The folks at Fair and Balanced edited Hoffa down to his most incendiary morsel, sounding the tocsin of class warfare – again. National Tea Party leaders called on President Obama to repudiate the remark, while in Rockford, Illinois, the local Tea Party called for Hoffa to resign.

Brad Blakeman, a former staffer for Bush-the-Younger, went on Fox to denounce the “thuggish” remarks as the sort you might expect from Tony Soprano, apparently forgetting for a moment that Jimmy Hoffa is not, actually, Jimmy Hoffa.

Michelle Bachman and Sarah Palin added their own scorn, the former branding Hoffa a thug, and the latter (to her credit, more on the merits) warning her working class followers that the unions are not their friends.

Neither mentioned the numerous Tea Party events (like this one, and this one, and this one too) at which demonstrators were encouraged to march with firearms.

But irony is not a Tea Party thing.

By midweek the news cycle had made all things new.

President Obama repudiated nothing, and Jimmy Hoffa stood his ground.

Later, some Republicans debated at a library, and the President addressed a joint session of Congress summoned by truant officers.

But on Thursday in Paris, the other rhetorical shoe dropped.

There, a three judge panel convicted British fashion designer and former Dior creative director John Galliano of “making public insults” based on race, ethnicity or religion, imposed a suspended fine of €6000, and assessed court costs of €16,500, which will go to fund the work of several groups working to combat racism, which were designated by his accusers.

His accusers are the patrons unfortunate enough to have endured his anti-Semitic rants, both outside a Paris bar, and in a restaurant, in October 2010 and February 2011, respectively.

The incidents included a harangue against a woman named Geraldine Bloch, whom Galliano accused of having “an ugly Jewish face,” of being attended by a “dirty Asian” companion and of having unfashionable boots.

(Ms. Bloch is not Jewish, her companion was not Asian, and the question of whether or not her boots were fashionable is well beyond the scope of my expertise.)

Not charged – but admitted into evidence – were remarks documented in a videotape circulated online by the Sun in February, in which Galliano accosted two diners in yet another restaurant, professing his love of Hitler, his hatred of Jews, and his wish that the ancestors of his victims had been gassed.

Galliano took the novel step of blaming his racist outbursts on substance abuse, and the Court, noting his remorse and his work on behalf of the gay community, declined to jail him.

But it might have, for up to six months.

What Mr. Galliano did is illegal in France, and in one form or another has been for well over a century. Article 29 of the Press Law of 1881 (here for the purists) makes both slander and “incitement to discrimination, hatred and violence” criminal offenses.

Under the Act of 13 July 1990 (the Gaysott Act), those defamed on the basis of race or ethnicity have a legal right of reply, and publications tending to call into doubt the reality of Nazi crimes against humanity can be punished by fines of up to €45,000.

Hoffa and Galliano make an unlikely pair, but their rhetorical adventures this week combine to form an instructive reminder of what constitutes incitement in America, and how unlike the rest of the world we are in that regard.

Despite some unpersuasive and ill-informed suggestions to the contrary, what Jimmy Hoffa said in Detroit on Monday does not constitute criminal incitement, and could not be punished as such consistent with the First Amendment.

The Constitution affords substantial “breathing space” to political rhetoric, and even if a prosecutor could establish that Hoffa was calling for political violence – a dubious argument given the content and the context of his remarks – advocating political violence, in the abstract, is perfectly legal.

More than four decades ago, the Supreme Court reshaped the law of what First Amendment lawyers call “seditious libel.” In Brandenburg v. Ohio, the Court held that only when violent advocacy is both intended to produce, and creates an imminent risk of lawless conduct, may it be punished by the law.

The “clear and present danger” test recognizes that hyperbolic rhetoric is a political commonplace, and not necessarily the first step on the road to revolution.

In similar cases, the Court has forbidden the prosecution of abstract threats upon the life of the president, Watts v. United States, and warnings that those who failed to honor a boycott of local merchants could expect to have their necks broken, N.A.A.C.P. v. Claiborne Hardware.

By these standards, the Hoffa speech is well within the boundaries of protected political expression, and no intellectually honest argument to the contrary can be made.

But had Mr. Galliano delivered his rants in Poughkeepsie, and not Paris, the answer would not be so obvious.

Discussions of race are a central part of American politics, and the right of racial extremists to espouse their views, however distasteful, falls well within the ambit of the First Amendment.

Indeed, not only must the government permit Anti-Semites to disseminate their message in the streets, Colin v. Chicago Park District, it must expend even considerable resources to ensure that their provocations do not incite offended bystanders to lawlessness, Forsythe County Georgia v. The Nationalist Movement.

The First Amendment protects speech that is deeply offensive, like the homophobic and anti-patriotic rants of Fred Phelps near the funerals of fallen soldiers, Snyder v. Phelps, and of dubious social value, like video games that feature graphic, first person violence, Brown v. Entertainment Merchants Association.

The core commitment to the notion that ideas are to be tested in the marketplace, and not proscribed a priori, is what distinguishes our approach to restricting hate speech to that taken by the nations of the European Union.

There are few topics that are simply off limits under the First Amendment. Obscenity, child pornography, false advertising and the solicitation of unlawful conduct are essentially disowned by the Constitution, deemed to be “non-speech” in the talk of the trade, in the belief that they are imbued with essentially no redeeming social value that merits protection.

Another class of non-speech – fighting words – also exists. Since Chaplinsky v. New Hampshire, the Supreme Court has recognized that a small subset of words are so inflammatory and likely to result in a violent response that their utterance may be punished.

Their fate hinges not on any idea that they convey, but on the fact that their use, in a sense, short circuits reason, and is “likely to provoke the average person to retaliation.”

Which brings us round to John Galliano in Poughkeepsie.

A good argument can be made that the face-to-face insults hurled by Galliano at his fellow diners were so likely to provoke a response as to amount to incitement. Indeed, the non-Asian companion of Ms. Bloch is reported to have wielded a chair against Galliano in response to his diatribe.

Such incitement can be prohibited under the fighting words doctrine, not because the ideas are ugly, discredited or useless, but because the words do not trade in ideas at all, so much as invite a physical response.

What links seditious libel and the fighting words doctrine is the belief that we protect expression because, and to the extent that, it is an appeal to reason. In this sense, both doctrines are about context, immediacy, and the intermediation of reason.

Mill realized as much fifty years before the Supreme Court began to flesh out the meaning of the First Amendment, when in On Liberty, he wrote:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard

The distinction is between content and context.

In France, Galliano can be punished because society has declared his idea useless and not worth considering.

Here, neither he nor Hoffa can be punished, unless their words bypass reason altogether, and present an imminent threat of disorder by stoking the passions of their listeners to violence.

Thomas Emerson, in his landmark work The System of Freedom of Expression, recognized that the distinction between punishing words likely to incite because they excite the listener, and words likely to incite violence because they convince the listener of some proposition or other, is the difference between taking seriously the moral autonomy of the listener, and treating him as an automaton.

Reacting to the Galliano conviction, Professor Eric Bleich of Middlebury College has suggested that, as a society, “[w]e may lose more than we gain from protecting racist speech.”

His essay is thoughtful, and his support of that conclusion lukewarm, but in the end I cannot agree.

France and the member states of the European Union undertook a systematic codification of human rights in the shadow of the Holocaust, and their conclusions regarding hate speech can only be understood in that context. But they assume the discredited garbage spewed by Galliano still has the power to persuade. Confidence in reason, and the power of rhetoric to reach reason, suggests a better result.

There is nothing good to be said about the ugly rantings of John Galliano. Anti-semitism, as Clive James observed, is “a world view through a pin-hole: as scientists say about a bad theory, it is not even wrong.” The French have decided as much as a matter of law.

But in America, every one has the right to be wrong.

Or not even. I prefer it that way.

Cleveland Heights, 10 September 2011



4 thoughts on “Enfants Terribles

  1. I know this is so last week now, Ray, but I wanted to take up your final point in reply to my comment on the enfants terribles post, namely:

    As to fighting words and those too subjectively horrified to respond with chairs: I should have been more clear. The standard does not require actual provocation, but rather that the tendency to provoke. So it is an objective standard, that does not turn on the sensitivity of the particular listener.

    Did you say “objective”?! I guess you mean by that that it is intersubjectively agreed upon, still, I reject the “tendency to provoke” criterion in exactly the cases where the powerless are terrorized by incendiary hate speech, and as an objective matter are too afraid to feel provoked: they feel too attacked! So my worry (about the consistency of my position) remains that there is vicious speech we cannot justify restraining on the grounds that it is 1. fighting words 2. has a tendency to provoke or 3. has any redeeming social value. So I just accept the problematic fact that the More not Less Speech line has some bad consequences.

    Thanks for that info about Dworkin’s explanation of why the Dworkin MacKinnon ordinance led to the Customs overreach. Interesting. Katheryn

  2. I have long been a free speech nut; still, I confess that I find myself having a bit of regulation envy when I hear of the likes of Galliano being legally punished for having hurled vicious racist language at people unlucky enough to be in his path. Your claim that “Such incitement can be prohibited under the fighting words doctrine, not because the ideas are ugly, discredited or useless, but because the words do not trade in ideas at all, so much as invite a physical response.” is helped by the fact that in the example the target was moved to pick up a chair and try physically to respond. But what about the case where the target is in fact paralyzed by fear or loathing or both? Then what are the grounds for restraint of the speech? What’s the test of something crossing over to the realm of fighting words?
    The really hard cases are when the vicious speech is not fighting words *and* it has absolutely no redeeming social value. Mill, as you know, argued that tolerating even that sort of speech has on balance transcendent social value, and I am inclined to agree with a version of that argument, with a twist. What clinches it for me is not the idea the the body of ideas is overall enriched by including even, say, vile racist epithets, rather it is that were we to decide to take measures against any speech we’d have to invest some body — the state? a town committee? — with the authority to make decisions about what speech is over the line. No thank you! I am reminded of what happened with the anti porn Dworkin Mackinnon ordinance that soon resulted in gay sex info books being held up in the mail.

    • Katheryn:

      I enjoy the progression in your comment, and how satisfaction at seeing Galliano get his just desserts leads, in short order, to the ironic and cautionary tale of how Canadian Customs saw the work of Andrea Dworkin,after the law she helped to establish (which defined obscenity as including works depicting women in subservient positions) became the law of the land. Dworkin maintained that the “equality based” standard she and Catherine Mackinnnon helped craft, which was incorporated intro the definition of obscenity in Regina v. Butler, had yet to be incorporated into Customs policies and standards for holding books at the border on the basis of obscenity at the time her own works were held, and if true, that makes her Canadian adventure less ironic, but no less instructive. Conferring to any group the power to determine what speech has, and what speech lacks sufficient social utility to be protected creates automatic rights of imprimatur and nihil obstat. There is little record as to what the founders envisioned as the core purpose of the speech clause, but broad agreement that it anything, the goal was the prohibition of prior restraints on expression of the sort your comment envisions at the end. Selective prohibition of non-speech, defined by judicial consensus over time, is a minimalist approach to such prohibitions. As to fighting words and those too subjectively horrified to respond with chairs: I should have been more clear. The standard does not require actual provocation, but rather that the tendency to provoke. So it is an objective standard, that does not turn on the sensitivity of the particular listener.

      Ray

  3. I agree. The French don’t get the concept of liberty. It’s a shame since they are so good at creating an image for her.

    However, I believe that you set up the commentators on the right as strawmen in your arguments regarding Hoffa (and others’) comments. The right took a lot of “holier than thou” comments when Giffords was shot in January. Obama and his supporters lectured the nation about how words can hurt and what does and does not count as proper political speech. Apparently, these comments do not apply to words that come from leaders on the left. I believe most of the right’s comments focused on the hypocrisy of Obama having Hoffa open for him with such language after he had condemned so many of his enemies for incendiary language.

    So, I agree that speech should be free. It takes more courage, though, to argue for free expression from people that you don’t like (as you know), rather than expression from people with whom you agree.

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