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European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more "advanced" or "modern." This article focuses on two authors whose writing appears to make these claims: Karl Loewenstein and Robert Post. A German Jewish émigré fleeing Nazi Germany, Loewenstein warned Americans that fascism was a new, modern phenomenon that required a new democracy, one that could protect itself by restricting speech. Post's position on democracy is quite different - he finds hate speech restrictions largely incompatible with democratic legitimacy. While at times Post shows an exceptionalist unwillingness to judge Europe for its lack of hate speech laws, at other points he is quite willing to say that a stable successful democracy does not ban hate speech. Tracking the competing claims of Loewenstein and Post opens the door to a more fluid analysis of European and American positions on hate speech - one that is both comparative and normative. [ABSTRACT FROM AUTHOR]

During the 1970s and 80s Europeans struggled to prosecute Holocaust deniers under laws banning hate speech. These prosecutions ran into problems--largely because they only reached situations in which the deniers, in addition denying the facts of denial, also blamed the denial on Jews or Zionists. Even when this did not result in victories for the deniers in court, it distorted the nature of the trials as courts picked through the testimony of the deniers for evidence of anti-Semitism. In response, many European countries (including France and Germany) passed laws making Holocaust denial itself the crime. These laws "solved" the legal problem but raised fears that the state, having established an "official truth" about the Holocaust, would move on to additional areas. In my paper, I suggest that the denial bans are best seen not as attempts to create state enforced truths, but as an effort to target a specific form of hate speech. The key here is that the insulting aspect of Holocaust denial comes not from the current language the denier uses (which could be quite moderate) but from the past events that the denier is trying to cover up. I show how this understanding (i) explains the motives of supporters of genocide denial laws; (ii) explains why European and international courts have upheld genocide denial laws and (iii) provides guidelines to show when genocide denial laws are supportable. I close the paper by taking up the objection that such laws are modern day blasphemy laws and suggest that the underlying concern about respecting the dead is common across most human societies. To explore this idea of respect, I briefly take up the Danish Cartoon controversy. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The past decade has seen a spate of anti-headscarf laws passed by supposedly liberal European constitutional democracies. The French have banned the hijab for public school students; several German states ban it for teachers. Meanwhile, towns in Belgium ban the wearing of the burka. Likewise, there was a recent row in the United Kingdom about whether lawyers could wear the niqab. My goal is to put these laws in comparative perspective by looking at two events: (1) the Kulturkampf in which Iron Chancellor Otto von Bismarck led a coalition of German nationalists and liberals, concerned about an influx of Catholics into Germany in the 1870s, to pass laws targeting Catholic belief and practices; and (2) the passage of clerical garb laws in the United States in the late nineteenth century (these laws were intended to prevent nuns from teaching in public schools). Ultimately both attempts at combating Catholics failed; the Kulturkampf was reversed within a decade and the religious garb laws (while still on the books) have fallen out of favor. My paper argues that the debate over Muslim practices (not only headscarves, but also mosque construction and related matters) is similar to the nineteenth century debates over Catholics. In both instances saw a fear of extremist, fundamentalist religion, ethnic based concerns about migration, and a determination to combat the problem through law. I also argue that just as the United States and Germany eventually integrated Catholics into society, the same result is possible with European Muslims. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]