ROBERT SIEGEL, HOST:
The French government's crackdown on protest and the calls for government action against the cartoons of the Prophet Muhammad underscore a difficulty in discussing freedom of expression. We may take that idea as something universal and self-evident. But, in fact, other countries, democratic countries, impose limits on offensive speech, limits that Americans would typically find at odds with our history. Hate speech or speech that incites racial hatred is illegal in Britain, France, the Netherlands, Germany, Denmark, Belgium and other European countries. Holocaust denial is specifically criminalized in much of Europe. It's our standard of free expression that protects even racially and religiously offensive material that seems to be the exception, not the rule.
Joining us now is Noah Feldman, who's a professor of international and constitutional law at Harvard and who's recently back from Tunisia. Professor Feldman, welcome to the program once again.
NOAH FELDMAN: Thank you for having me.
SIEGEL: I gather Tunisians who were offended by the thought of that anti-Islamic video thought the U.S. government ought to suppress it and figured it could do so.
FELDMAN: Absolutely. I had conversations with highly educated Tunisians, people high in the government, who were genuinely astonished to discover that under U.S. law, we couldn't ban speech like that precisely because any incitement that might occur is distant in time, distant in place and not at all certain to occur.
SIEGEL: It's not shouting fire in a crowded theater.
FELDMAN: We've developed standards for the prohibition of inciting speech that require a high degree of proximity and a high degree of confidence that there will be violence that emerges. Justice Breyer a couple of years ago said publically that perhaps we needed to think twice about that in an increasingly globalized world and he was roundly criticized. But one might think that he was in some sense, prescient. We may have to actually reconsider what counts as incitement in this day and age.
SIEGEL: As things stand, are we the outlier here when it comes to freedom of expression and defensive speech?
FELDMAN: Absolutely. In the U.S. we value the liberty of the speaker much more highly than in either the dignity of the person who feels insulted or the state's interest in trying to avoid a violent protest. And because we're concerned not to allow what's called a heckler's veto, where the fact that one particular group or person will make a fuss means that we prohibit the speech. We've tended to be extremely permissive, and that does make us very different from other countries. It's actually a problem when people elsewhere actually think, including reasonable people, that the United States government must be complicit in something like the anti-Muslim film because we haven't prohibited it.
SIEGEL: Yeah, this sets up a loop of misunderstanding. They assume that our government is backing these sentiments through inaction and Americans take their demands for suppression, even apart from the violence, as extremist and undemocratic.
FELDMAN: That's absolutely right. It is a deep cycle of misunderstanding and it should be possible both for us to say these are our values. We believe in free speech while we condemn the substance. It should also be possible for them to protest, of course in a peaceful fashion. I don't think, you know, it doesn't forgive the violence by any stretch of the imagination.
SIEGEL: This idea of a right to dignity that I gather is imbedded in lots of European legal systems makes it a criminal infringement to deny somebody else, or impugn someone else's dignity. Isn't that by our standards a pretty squishy concept?
FELDMAN: It can be extremely squishy, though of course, we do have hate crimes laws. But those usually require you to commit some violent act alongside of your belief that you're acting because of the person's religion or sexual orientation or what have you, so the squishiness is not altogether unfamiliar to us. But I think what's most distinctive from our perspective is that we think that if your feelings are hurt, that's your problem. We don't believe that you ought to be protected from the hurly-burly of political insult. And that's a very deeply ingrained American notion.
SIEGEL: It does seem very problematic to say an American may not say that, or write that, or publish that, because a mob somewhere else in the world might kill someone or storm a building, even though we condemn that reaction.
FELDMAN: It does seem very strange, yet, by the same token, you might think that an American standing in front of a crowd in the United States should be free to say whatever he wishes. And yet the courts have always said that if it's probable and immediate and imminent that there will be violence, the police can come and shut that person down. And so the question is whether the physical distance really matters.
I think probability would have to be just as high as it is if you're facing a crowd, and that may be difficult to obtain in practice. But the idea of it under some conditions, we do want to limit speech because of what's about to happen and is very likely to happen, is familiar to our law, and one could imagine that under some circumstances that might apply here, especially as technology brings such conversations closer and closer.
SIEGEL: Professor Feldman, thank you very much for talking with us today.
FELDMAN: Thank you so much for having me.
SIEGEL: That's Noah Feldman, professor of international and constitutional law at Harvard.