The Question of Tolerance

On September 12, Carlo Sibila, member of the Italian Chamber of Deputies, tweeted: “Today Apple is presenting #iPhone8 [while I am] in the parliament obliged by the #PD to debate #fascism vs #communism … #asyouwish #AppleEvent.” These dismissive words, seemingly showing a stronger interest in Apple than national policy, hardly provide an understanding of what was actually at stake. The law being discussed was the article 293-bis of the Penal Code, which concerns legal restrictions on public speech, symbols and association. The article 293-bis is a new form of the Scelba act of 1952 and of the Mancino of 1993, and extends the scope of what forms of National Socialist and Fascist propaganda and content are to be considered illegal in Italy. Under this new legislation, individual gestures such as the Roman salute and the distribution of paraphernalia will become liable for punishment, which ranges from 6 months to 2 years of imprisonment. Additionally, the penalty is risen by a third if the act was committed through telematic or information technology. It was first proposed by the PD (the Democratic Party) in July, and was passed on the day of Sibila’s tweet, with 261 votes in favor, 122 against and 15 abstained. The law still has to pass the other chamber of parliament, the Italian Senate, before being adopted and implemented. The move, however, reflects a larger debate in Italy, where the far-right party Forza Nuova is currently planning a march on Rome, scheduled for the very date when Mussolini, through a similar gesture, gained political control in Italy’s capital.

With political galvanization and a renewed discussion of freedom of speech, recent times have shown a shift in perspective over ideological censorship, with a range of cases in Italy, Europe, and younger Americans, perhaps suggesting for the question of tolerance to be reconsidered non only on a European, but also an American level. The connection between the passing of article 293-bis and political control can be shown in terms of an ideological debate, namely that of the range and valence of free speech. It is perhaps best exemplified through the paradox of tolerance, first discussed by Karl Popper in his 1945 work The Open Society and Its Enemies. He argues that unlimited tolerance leads to the disappearance of tolerance. He does so by stating that a fully tolerant society will include and support intolerant views and groups. In that, it will not be able to protect itself from such groups that advocate the destruction of the tolerant, which leads to a decay of tolerance, and the disappearance of the original society as such. The question of tolerance has been present in Europe for most of the past century, but the problems arising with the definition of its scope are far from solved. In Germany, one of the earliest adopters of a constrained tolerance, its interpretation has been flexible, including groups which embody intolerance without a direct historical heritage, as opposed to Nazi groups. In Ukraine, restrictions on tolerance have shown the importance of a definition of its intention, and a need for containment when speech limitations are to be applied. As much as these case studies define the issue, an active conscience that this is a crucial ideological debate is needed, and an active reflection on liberal values in both the EU and the US will define the discussion in the time coming.

Other European countries have gone through similar legal deliberations, discussing a central value of liberalism in a context of political polarization, and more importantly, a common cultural past. Germany, a country central to this discussion, uses the article 83a of its criminal code, which incorporated the “Heil Hitler” salute in 1970, and the “Sieg Heil” salute in 1990. Interestingly, more recent changes have been made in 1994, when symbols that promote an equivalent but not equal message, such as modified imagery and slogans used by Neo-Nazi groups, were included. The law itself is not restricted to disbanding one vision, but rather whatever is deemed unconstitutional, with external examples ranging from the Isis flag to the Wolfenstein game series. This flexibility may be understood as a reflection of national sentiment, but when applied to issues as niche as video games, shows how a defined scope is needed. Similar laws have been passed in neighboring countries, such as Austria, Hungary, the Czech Republic, and Switzerland. However, the Swiss court amended the decision in 2014, permitting the gesture as long as it is a sign of personal conviction rather than a promotion of ideology. Again, the dilemma is presented on what constitutes a personal conviction, and where is the line between self-affirmation and propaganda. The decision could be justified by Switzerland’s less prominent role in Europe’s warring past, but the question remains of how is such a standard determined, and to which degree is it a political tool.

As much as one may consider national censorship justifiable on grounds of extremism in historically affected nations, there is still much attention to be given to the extent that this is to be permitted. There is a term, defensive democracy, which is assigned to states that believe in restricting the liberty of speech to safeguard the ideal of democracy. However, it may not always be applicable in the European case. In 2015 Ukraine passed legislation “on the condemnation of the communist and Nazi totalitarian regimes” which prosecutes use of related symbols outside of academic purpose with punishment up to five years in prison and ten years for members of organizations. Additionally, the law requires over 900 villages with Soviet-related names to be retitled. Now, the application of such a law could be seen as an attempt by the Ukrainian government to redefine itself in light of a strong Soviet-influenced past. However, historical redefinition, aside from the problems proper, raises the issue of national definition and ideology. Other Eastern European countries have passed legislation prohibiting certain use of Socialist symbols, but the Ukrainian case defies them wildly in scope. It is considered an offense, under the law, to question the “criminal character of the communist totalitarian regime of 1917-1991 in Ukraine,” making historical interpretation, aside from political application, illegal.

Additionally, a second law was also passed, which legitimated controversial groups such as the Organization of Ukrainian Nationalists, the Ukrainian Insurgent Army, and the Svoboda Party as “independence fighters,” whose legitimacy may not be questioned. Such groups have played a role against Soviet and Nazi forces, but they also have collaborated with the latter, and engaged in ethnic cleansing. The move was heavily criticized by organizations such as the Council of Europe and Amnesty International, under the grounds that the law was too vague, with the Venice Commission of the Council of Europe stating that propaganda should “imply something more than the mere expression of opinions and ideas.” Defensive democracy justifies censorship in terms of the defense of national democratic institutions, rather than in the active prohibition of select ideologies. Ukraine may be partly justified in that the state, and with it democracy, were under attack in previous years, but shows directly the dangers that legal restriction entails, if used to pivot not democracy, but national speech.

As much as a full understanding has not been reached of how forms of speech and symbolism ought be restricted, Europe has been having this debate for the last half century, specially intensified by the rise of extremist political factions in recent years. This last phenomenon, however, was also seen in the US, however without the introduction of a debate on freedom. In the US, Nazi imagery is permitted, together with groups such as the National Socialist Movement, by the latest reading of the First Amendment, under the landmark case of Brandenburg v. Ohio in 1969, which punishes only speech that is “directed to inciting or producing imminent lawless action.” It would appear as under this aspect all ideologies, unless advocating for imminent violence, ought to be tolerated, alongside with their symbols. Is this a sign of a strong democracy? Protests have become more violent, and extremist factions have been uniting under a common platform across Europe and the US, with groups such as the Italian Forza Nuova being supported by US extremists and even having multiple locations in America. It is perhaps in such a light that the American public could question its own vision of speech, not necessarily on a federal level, but even to a state level, where speech and symbols can also be restricted, such as it was the case in California, South Carolina, Mississippi, Virginia, Georgia, and Alabama for the Confederate Flag. At the same time, tolerance and liberty are differently understood in Europe and America, and matters of national identity are seldom fast-paced, but whereas the debate on tolerance is active in Europe, it seems to stall in the US, but one is to ask if recent experiences may change the perspective for future generations. A 2015 Pew Research Center poll showed that 40 percent of Millennials think the government should be able to suppress speech deemed offensive to minority groups, compared to only 12 percent of those born between 1928 and 1945. Perhaps this mentality may indeed change with new versions of the liberal state, as the recent debates in Europe prove a trend that shows a need not for a new concept of liberal democracy, but a redefinition of it instead. We are left to see if America too will ask the same question in the next years.