Dec. 8, 2016
France’s legislative effort to ban pro-life websites passed the National Assembly last week, and just passed that country’s Senate yesterday. While the measure criminalizes a number of things, of note is the ban on making statements which bring “moral and psychological pressure” on a person as part of persuading them to not have an abortion. What about moral and psychological pressure to have an abortion? That is not banned.
This is what we in the United States call “viewpoint discrimination,” the most blatant kind of speech restriction prohibited by our First Amendment to the Constitution. Prohibitions on viewpoint discrimination prevent the government from “regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction” Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 829 (1995). For we don’t want the government to be able to “‘effectively drive certain ideas or viewpoints from the marketplace’” Turner Broadcasting Systems v. FCC, 512 U.S. 622, 641 (1994). As the Supreme Court has said, “[i]t is precisely this element of taking sides in a public debate that identifies viewpoint discrimination and makes it the most pernicious…” Rosenberger, 515 U.S. at 895.
While in the United States we may have grown used to the pro-life viewpoint being marginalized and pushed out of certain sectors of culture and academia, we generally rest assured in our strong free speech protections which guard against government efforts to censor certain viewpoints.
Last year, a federal judge found that a public university’s efforts to ban “controversial” speech was actually an attempt to ban the pro-life viewpoint and thus unconstitutional. In that case, the “political and social controversy” the university cited was due to the students’ position on abortion. If the university was concerned with “controversy” connected to the topic of abortion, it might be able to prohibit all speech on that topic in certain areas on campus. But if, as alleged, the university was actually targeting the “controversy” arising from pro-life views, it would be targeting these pro-life students for their position on the issue of abortion, and would thus be engaged in viewpoint discrimination—something the government is strictly prohibited from doing.
France’s ban on pro-life views follows not too long on the heels of a government decision to bar a video featuring individuals with Down syndrome from appearing on French television because the smiles of the children in the video would “disturb the conscience of women who had lawfully made different personal life choices”—meaning, it would offend and upset women who had aborted their Down syndrome children.
Again, we can be thankful for free speech law in the United States, which, despite the efforts of university activists who want to ban offensive words, currently does not permit the banning of speech just because it is offensive.
These efforts by France should remind us of the value and importance of our own Free Speech law. While free speech infringements in France may be appealed, possibly up to the European Court of Human rights, this is already troubling enough. That the government can so easily shut down one side of an important public debate (or ban offensive presentations) are things that should make everyone who loves freedom (whether in Europe or the United States) worry.