Racist Speech or Free Speech? A Comparison of the Law in France and the United States

In July 1972 the French parliament passed the Pleven Law to combat racism. This law provided criminal and civil remedies against racial discrimination and racist speech. It became illegal to incite racial hatred or to use language that was racially defamatory, contemptuous, or offensive.1 Under the Gayssot Law, passed in July 1990, it is illegal to deny publicly the occurrence of the Nazi Holocaust. Punishments for these offenses include fines, imprisonment of up to one year, suspension of electoral eligibility for up to five years, and publication of the court's decision in major daily newspapers at the expense of the guilty party. The Pleven Law has been applied regularly against racist agitators. In 1997 there were eightyeight convictions for racist speech with fines averaging 10,000 francs and prison sentences averaging two months, depending on the category of infraction. One of the most notable targets of the law has been Jean-Marie Le Pen, the leader of the extreme right-wing National Front. Le Pen has been convicted and fined for racist speech on five occasions, and there have been dozens of convictions against other principal members of his party. The legislative response to racist speech has been quite different in the United States. American courts have generally interpreted the First Amendment as protecting the rights of groups like the Ku Klux Klan and neo-Nazis to hold rallies in which they advocate racial hatred and violence and to burn crosses or brandish swastikas in public places. Recently, however, this approach has come under some question. An increase in racist incidents and heightened sensitivity to such incidents in a multicultural society have aroused interest in regulating racist speech. In the late 1980s and early 1990s many U.S. universities adopted codes of conduct limiting racist and other kinds of hate speech, in an effort to create a more welcome climate on campus.2 Some cities also passed restrictions against racist speech. In June 1990 city officers of St. Paul, Minnesota, arrested a group of teenagers for burning a cross on a black family's front lawn and charged them with racially hateful conduct.3 One of the youths contested St. Paul's antiracist bylaw, arguing that it was in violation of his constitutionally protected right to free expression. The St. Paul ordinance was unanimously struck down by the Supreme Court, and many similar antiracist speech codes that had been adopted across the country were subsequently dismantled.4 At first glance, it would seem difficult to imagine more divergent legal responses