ARTICLE: Kahn on "Does it Matter How One Opposes Hate Speech Bans? A Critical Commentary on Liberté Pour L’Histoire's Opposition to French Memory Laws"

U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-16 

Robert A. Kahn, University of St. Thomas School of Law (Minnesota)

Abstract

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech law. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté historians also quite hostile toward multiculturalism. While this reflects the French culture in which the historians operate, it is normatively quite unappealing. This is especially true given the existence of other, more inclusive European arguments against hate speech regulation, such as those of Danish cartoon publisher Flemming Rose and Maltese Judge Giovanni Bonello. There has to be a better, more inclusive way to oppose French memory laws.

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