Yahoo! We Have Free Speech

Yahoo! We Have Free Speech

Jacob G. Hornberger

by Jacob G. Hornberger
April/May 2001

A recent ruling by a French court in a lawsuit brought against reflects the dramatically different way in which Americans and Europeans view the importance of individual liberty.

The case involved Yahoo’s online auctions of Nazi memorabilia. In France, as in Germany, such sales constitute a severe criminal offense. While Yahoo was not permitting the auctions on its French website, there was nothing to prevent Frenchmen from accessing Yahoo’s U.S. site and purchasing items there.

The French court ordered Yahoo to block French users from accessing online auctions of Nazi materials on its U.S. site, a process that is not technologically possible. While Yahoo continues to contest the court’s order, it recently removed thousands of hate items from its online auctions.

The true test of a free society is not whether people are free to publish respected, popular, and approved materials. The true test of freedom is whether people are free to publish vile, despicable, and contemptible items.

A good example of an unfree society was Germany in the 1930s and 1940s. In Nazi Germany, the state had the power to determine which items could be published and to criminalize the publication of unacceptable materials. If a person published prohibited items, punishment was often severe.

Consider the story of “The White Rose,” a series of essays surreptitiously published by two German college students, Hans and Sophie Scholl, in 1942. The essays severely denounced Adolf Hitler and the Nazi regime and even called for the overthrow of the government.

The essays were illegal under German law because criticism of the Nazi regime was considered vile, despicable, and contemptible. What was significant, of course, was that the German government had the power to determine which utterances were unacceptable and to make their publication illegal.

Hans and Sophie were ultimately caught and put on trial by the German authorities. The judge castigated them for their illegal and unpatriotic conduct. Sophie shocked everyone in the courtroom when she said to the judge, “Somebody, after all, had to make a start. What we wrote and said is also believed by many others. They just don’t dare to express themselves as we did.” The judge sentenced both of them to death. As Hans followed his sister to the guillotine, he paused and yelled, “Long live freedom!”

Of course, the Nazi authorities could kill them only once for uttering such “despicable” ideas.

The problem is that French and German authorities today assume and exercise the same power that Hitler and the Nazis exercised — the power to determine what is acceptable speech and to criminalize the publication of what is considered to be unacceptable. Under the Nazis, criticism of Nazism was considered unacceptable. Today, glorification of Nazism is considered unacceptable. But make no mistake about it: The mindset that government should have the power to make this determination and to punish people for violating it is no different today than it was 60 years ago under Hitler and his henchmen.

Compare this to the United States. No one would dispute that some U.S. officials would love to assume and exercise the same power over speech that Hitler exercised 60 years ago and that Germans and French authorities exercise today. And it’s true that U.S. officials have made significant inroads in the area of pornography and “commercial” speech.

But by and large, people in the United States are free to publish anything they want, including pro-Nazi material. And the reason for this is the higher law that our ancestors imposed on our government officials more than 200 years ago when our government was established. I’m referring, of course, to the U.S. Constitution, and more specifically, to its First Amendment. Under the First Amendment, the members of Congress, albeit democratically elected, are absolutely prohibited from abridging freedom of speech, even if 99 percent of the citizenry consider some of it vile, despicable, and contemptible.

So, the next time you see Nazi memorabilia being advertised and sold in the United States, count your lucky stars that you live in a society in which the Founders rejected the old European mindset of control and chose liberty instead.

Mr. Hornberger is president of The Future of Freedom Foundation ( and co-editor of The Case for Free Trade and Open Immigration.

by Jacob G. Hornberger

Copyright © 2001 The Multiracial Activist. All rights reserved.

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