A recent ruling by a French court in a
lawsuit brought against Yahoo.com reflects the dramatically different
way in which Americans and Europeans view the importance of individual
liberty.
The case involved Yahoo’s
online auctions of Nazi memorabilia. In France, as in Germany, such sales
constitute a severe criminal offense. While Yahoo was not permitting the
auctions on its French website, there was nothing to prevent Frenchmen
from accessing Yahoo’s U.S. site and purchasing items there.
The French court ordered Yahoo to
block French users from accessing online auctions of Nazi materials on its
U.S. site, a process that is not technologically possible. While Yahoo
continues to contest the court’s order, it recently removed
thousands of hate items from its online auctions.
The true test of a free society is not
whether people are free to publish respected, popular, and approved
materials. The true test of freedom is whether people are free to publish
vile, despicable, and contemptible items.
A good example of an unfree society
was Germany in the 1930s and 1940s. In Nazi Germany, the state had the
power to determine which items could be published and to criminalize the
publication of unacceptable materials. If a person published prohibited
items, punishment was often severe.
Consider the story of “The
White Rose,” a series of essays surreptitiously published by two
German college students, Hans and Sophie Scholl, in 1942. The essays
severely denounced Adolf Hitler and the Nazi regime and even called for
the overthrow of the government.
The essays were illegal under German
law because criticism of the Nazi regime was considered vile, despicable,
and contemptible. What was significant, of course, was that the German
government had the power to determine which utterances were
unacceptable and to make their publication illegal.
Hans and Sophie were ultimately
caught and put on trial by the German authorities. The judge castigated
them for their illegal and unpatriotic conduct. Sophie shocked everyone in
the courtroom when she said to the judge, “Somebody, after all, had
to make a start. What we wrote and said is also believed by many others.
They just don’t dare to express themselves as we did.” The
judge sentenced both of them to death. As Hans followed his sister to the
guillotine, he paused and yelled, “Long live freedom!”
Of course, the Nazi authorities could
kill them only once for uttering such “despicable” ideas.
The problem is that French and
German authorities today assume and exercise the same power that Hitler
and the Nazis exercised — the power to determine what is
acceptable speech and to criminalize the publication of what is considered
to be unacceptable. Under the Nazis, criticism of Nazism was considered
unacceptable. Today, glorification of Nazism is considered unacceptable.
But make no mistake about it: The mindset that government should have
the power to make this determination and to punish people for violating it
is no different today than it was 60 years ago under Hitler and his
henchmen.
Compare this to the United States. No
one would dispute that some U.S. officials would love to assume and
exercise the same power over speech that Hitler exercised 60 years ago
and that Germans and French authorities exercise today. And it’s
true that U.S. officials have made significant inroads in the area of
pornography and “commercial” speech.
But by and large, people in the United
States are free to publish anything they want, including pro-Nazi material.
And the reason for this is the higher law that our ancestors imposed on
our government officials more than 200 years ago when our government
was established. I’m referring, of course, to the U.S. Constitution,
and more specifically, to its First Amendment. Under the First
Amendment, the members of Congress, albeit democratically elected, are
absolutely prohibited from abridging freedom of speech, even if 99
percent of the citizenry consider some of it vile, despicable, and
contemptible.
So, the next time you see Nazi
memorabilia being advertised and sold in the United States, count your
lucky stars that you live in a society in which the Founders rejected the
old European mindset of control and chose liberty instead.
Mr. Hornberger is president of The Future of Freedom Foundation (www.fff.org.) and co-editor of The Case for Free Trade and Open Immigration.
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