המלכוד הדמוקרטי 

The Democratic "Catch"
Raphael Cohen-Almagor

One of the dangers in any political system is that the principles that underlie and characterize it may, through their application, bring about its destruction. Democracy, in its liberal form, is no exception. Moreover, because democracy is a relatively young phenomenon (in its present liberal formation it was crystallized only after the First World War) it lacks experience in dealing with pitfalls involved in the working of the system. This is what I call the ?catch? of democracy.
Like every young phenomenon, democracy needs to develop gradually, with great caution and care. Since democracies lack experience, they are uncertain with regard to the appropriate means to be utilized in order to fight down explicit antidemocratic and illiberal practices. In the United States, the American Civil Liberties Union (ACLU) among other organizations has supported the rights of racist and anti-Semitic organizations, most notoriously the Ku Klux Klan and the American National Socialist Party, to speak, to demonstrate, to march, and to organize. Racists and hate mongers are the greatest champions of the First Amendment that enables their survival, and since the introduction of the Internet into our lives, their increase in numbes. In their defense of radical political groups, the ACLU and others have not claimed that the words, pictures, and symbols of such groups have no negative consequences. The constitutional protection accorded to the freedom of speech is not based on a na?ve belief that speech can do no harm but on the confidence that the benefits society reaps from the free flow and exchange of ideas outweigh the costs society endures by allowing reprehensible and even dangerous ideas. Free speech activists acknowledged that the racist and anti-Semitic images and discourse of these groups can inflict damage on the targeted individuals, can harmfully corrupt the level and nature of civic discourse, and can at times increase the probability of violent and unlawful acts being committed against people on account of their race or religion. Yet the admission of speech?s causal propensities and harmful consequences has not lessened the strength of the Free Speech Principle. That is because the free speech rights of Nazis and the Ku Klux Klan are not a consequence of the ineffectualness or the harmlessness of their utterances. The Nazis and their ilk have free speech rights not because what they say is harmless, but despite the harm they cause by what they say.

Rights and Costs
However we need to recognize that rights are costly, and that someone must pay for them. Citizens have a right to freedom of expression, but the state can limit that right in order to prevent a threat to public order, the security of the state, or third parties in need of protection (such as children). If it is the case that public security is decreased because of the harmful exercise of the Free Speech Principle, then it is quite possible that the rhetoric of rights will not suffice to justify the protection of the questionable speech. Then the strength or scope of the rights recognized ought to be decreased. Once we recognize that rights have costs, we can and should ask about the justifications for bearing the costs, weighing them against the harms inflicted upon society as a result of a wide scope of tolerance. While recognizing that as humans we have the need to express ourselves and, therefore, suppressing speech in itself is a form of damage, we should also inquire about the justifications for tolerating the damaging speech and whether these are weighty enough. We should examine how serious is the ?democratic catch? and whether it might seriously harm a certain group of people or endanger democracy. We would not like to experience another Oklahoma bombing, not to mention another September 11.

Prof. Raphael Cohen-Almagor is the founder and director of the Center for Democratic Studies, University of Haifa. This piece is derived from his new book, published in October 2005, The Scope of Tolerance: Studies on the Costs of Free Expression and Freedom of the Press (London and NY: Routledge).