Abstract
Introduction One of the hardest decisions facing a liberal constitutional state is whether to censor speech that makes light of, or seeks to perpetuate, past acts of violence. This issue faces American courts when they are called on to decide whether the First Amendment protects the burning cross, a symbol of the racist violence perpetuated by the Ku Klux Klan during the era of segregation. Likewise, German courts face the issue when called upon to decide whether the guarantee of freedom of expression in the basic law protects those who deny the Holocaust. This article compares both sets of cases and concludes that - in the United States and Germany, at least - when societies are forced to choose between tolerating extremist speech and protecting the national image from charges of intolerance, the latter will generally be chosen. Using the law to protect the national image is not new, although in earlier times, the priorities were different. The same southern states that, in the twentieth century, passed laws outlawing cross burning and Ku Klux Klan masks had, a century earlier, banned abolitionist speech. 1 Likewise, during the late nineteenth and early twentieth centuries, German judges took great pains to protect the military from insults, while at the same time interpreting the insult laws far more narrowly when the plaintiffs were Jews. 2 Today, however, both the United States and Germany target speech and expressive acts that recall violent episodes in the national past. The 1992 R.A.V. v. ...