Anti-Semitism on Trial

When Brazil's Supreme Court ruled in the case of Sigfried Ellwanger ­- an editor, author, and notorious Nazi sympathizer - it entered the perilous field where free speech and efforts to contain racism meet. For years, Ellwanger published anti-Semitic books, such as The Protocols of the Elders of Zion , as well as books of Holocaust denial, such as his own Jewish or German Holocaust: Behind the Lie of the Century . By a vote of eight to three, the Court upheld his conviction on charges of racism.

Of course, the enormity of the Holocaust ought to have eradicated anti-Semitism for all time. Shamefully, it did not. In many places, hatred of Jews thrives. Elsewhere - including Europe and the United States - anti-Semitism survives among a fringe of neo-Nazis and renegades like Ellwanger, but also, more widely, in milder forms of prejudice.

But punishing someone criminally for being an anti-Semite and a racist propagandist raises troublesome issues that different countries approach in different ways. To be sure, every country places some limits on speech. As Oliver Wendell Holmes famously put it in a 1919 US Supreme Court decision, "Even the most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a crowded theater and causing a panic."

Banning someone from shouting "Fire!" in a crowded theater is not the same, however, as convicting him for holding and propagating an opinion, even a despicable one, such as anti-Semitism. In a democracy, standard restrictions regulate the time, place, and manner of speech in order to prevent imminent violence and civil disorder. They bar threats against, and harassment of, individuals. They forbid libel and fraud.

Some countries, such as the US, refuse to go further and regulate speech because of its content . The reason, as US Supreme Court Justice Louis Brandeis put it, is that "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

Why, then, do many countries prosecute the hate speech of racists? Why do International Human Rights Conventions stipulate that the law should prohibit speech that supports national, racial, or religious hatred? Is any form of race-related speech that anybody finds offensive to be prosecuted? Will such prosecutions actually deter hard-core racists?

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No court should convict someone lightly because of the views he espouses in the public sphere. But Ellwanger's appeal, which took almost a year for Brazil's Supreme Court to hear and decide, put Brazil squarely on the side of those who believe that inciting hatred against even a small minority - such as Jews in Brazil - cannot be allowed in the name of freedom of speech.

The Ellwanger case arose because many believe that anti-racism laws can be effective in reassuring minorities of their safety and place in the community. Brazil is a large, pluralist, multi-ethnic country. Its social fabric, like that of many other countries around the world, depends on mutual trust among citizens. Constitutional and legal provisions that make practicing racism a crime punishable by imprisonment have great symbolic significance and help insure - indeed, create and secure - social peace.

Defining the offensive racist views proscribed by the Constitution was the first challenge in the Ellwanger case, because the defense denied that anti-Semitism constitutes racism at all. The Jews, the defense claimed, do not constitute a race.

In fact, the Jews are, of course, not a race, but then neither are whites, blacks, mulattos, Indians, gypsies, Arabs, or any other subgroup of human beings. The recently completed sequencing of the human genome proved the existence of but a single race: the human race. The Court made short shrift of Ellwanger's claim, because all human beings can be the victims of racism. The practices of racism are historical, political, and cultural phenomena. Their systematic dissemination endangers minorities, threatening them with invidious discrimination. The truth of a racist belief is not the issue.

The second issue the Court considered was the conflict between constitutional principles: the clash between freedom to express one's thoughts and condemnation of Ellwanger for the crime of racism. The court ruled that, ultimately, freedom to express one's thoughts, however generously conceived in a democracy, must be balanced against other values, such as reputation, honor, privacy, dignity, and equality. Ellwanger crossed the line separating free expression from hate speech.

As in the Ellwanger case, restrictions on free expression should be defined narrowly. But by opting for a balanced concept of free speech, Brazil's Supreme Court followed precedents in a number of European countries condemning Holocaust deniers, as well the opinion of the committee charged with monitoring compliance with the UN Convention on the Elimination of all Forms of Racial Discrimination and the European Court of Human Rights. In a world where anti-Semitism and racism fester, where prejudice on national, religious, colored-based, or ethnic grounds foster discrimination, that is the view that best nurtures the rights of all.

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