Duke University Alumni Magazine


Speech and consequences: Right-wing French journalist Robert Brasillach, standing in the dock as his trial begins in January 1945 for his collaborationist writings, which contrasted sharply with the Resistance journalism of Albert Camus, fifth from left, top photo, and colleagues at the Free French publication Combat.
Photo: Agence France Presse

"There are words as murderous as gas chambers," wrote Simone de Beauvoir about Nazi collaborator Robert Brasillach. Deadly words are still being uttered today as free speech continues to collide with accountability.

n September 1942, two months after an infamous, massive roundup of French Jews, French fascist newspaper editor Robert Brasillach wrote, "We must separate from the Jews en bloc and not keep any little ones." That year alone, more than 4,000 children were deported from France to Auschwitz.

Between April and June of 1994, hundreds of thousands of Rwandans who were ethnic Tutsis were massacred at the hands of hundreds of thousands of Rwandans who were ethnic Hutus. The attackers were urged on by radio announcers, including one European, the Belgian-Italian Georges Ruggiu, who exhorted, "What are you waiting for? The tombs are empty. Take up your machetes and hack your enemies to pieces."

In October 1998, Barnett Slepian, a physician whose OB-GYN practice included abortions, was shot and killed in his home in Buffalo, New York, by a sniper. He was the third physician killed in five years, and his killer is still at large. His name and the names of the other doctors were struck out on a list of abortion providers, nurses, and clinic workers, on a graphic anti-choice website maintained under the name "The Nuremberg Files."

In none of these instances did the authors of the remarks in question pick up a gun or a machete or even sign a deportation order. Yet the words of Brasillach, Ruggiu, and the anti-choice website reached far beyond "sticks and stones," and they echo today in questions of freedom, responsibility, and accountability.

For years, Romance studies and literature professor Alice Kaplan, whose father was a prosecutor at the Nuremberg trials, has been curious about the "whys" of intellectuals who pursue fascism. In her graduate school days, she explored the work of such French fascists as C四ine, and later provided a rational examination of the scandal that swirled through academe when it was discovered that Paul de Man, the father of deconstruction, had been a minor collaborator in Belgium in World War II. Now she poses questions of language and accountability about Robert Brasillach in her new and highly acclaimed book, The Collaborator: "Why was a writer punished for what happened in France between 1940 and 1945? Why this writer and not others? When are words as noxious as actions?"

Brasillach's words condemned more than just 4,000 Jewish children, more than even the whole of French Jewry. Kaplan describes him as "a denunciator," whose Vichy-era editorial writings in Je Suis Partout targeted Communists, former government leaders, left-wing intellectuals, Resistance fighters, even other writers. "It's without remorse, rather with immense hope, that we vow for these men to go to a concentration camp, if not to the firing squad," read one Brasillach article quoted by the prosecutor at his treason trial. And while he had written a cruelly clever little fable comparing French Jews to monkeys, another article stated directly, "We must treat the Jewish problem without sentimentality."

At his trial, Brasillach became the first defendant in the Court of Justice trials who refused to retract or apologize for his words. "What you have to remember," Kaplan says, "is that Brasillach thought he was a great patriot. He wasn't following orders. He wanted France to be fascist. He was going to help cleanse France of its impurities, its foreigners, its democrats, its Jews.

"It wasn't like he said, 'Oh, I don't feel any responsibility.' He actually felt a great sense of responsibility. Responsibility to his cause. You look at Brasillach and you say he was acting in good faith--it's just that he had really terrible values. What's worse? A guy like that, or somebody who collaborates with the Germans out of greed or venality, or a bureaucrat like Eichmann, who, out of some desire for efficiency, signs a bunch of papers and then millions of people end up murdered?"

To many Frenchmen at the time, however, Brasillach was a hated symbol of collaboration and oppression. After his conviction, a group of French writers circulated a petition calling upon French president Charles de Gaulle to show mercy and prevent the execution. Despite the free-speech issues involved, many writers refused to sign. Jean-Paul Sartre, for instance, "didn't sign and never explicitly explained why," Kaplan writes, "but he referred in much of his writing of the period to the responsibility of the writer and to the idea that a writer must be prepared to die for what he puts on paper." Simone de Beauvoir also refused to sign, and her reflections eighteen years later came to the point: "There are words as murderous as gas chambers.ノ In the case of Brasillach, there was no question of a mere 'offense of opinion'; his denunciations, his advocacy of murder and genocide constituted a direct collaboration with the Gestapo."

Albert Camus did sign the clemency petition, but as Kaplan shows in a letter he wrote to a friend, it was solely because he abhorred the death penalty. "It is not for the writer, whom I consider of no significance," Camus wrote. "Nor for the individual, whom I disdain with all my might. If I had even been tempted to be interested in him, the memory of two or three of my friends who were mutilated or gunned down by Brasillach's friends while his newspaper encouraged them to do it would have prevented me."

Ultimately, de Gaulle rejected the petition and Brasillach went to his death with one last bit of wit and patriotism, crying out, "Vive la France quand meme" (Long live France anyway).

When de Gaulle looked back at the Brasillach case in his memoirs, he expressed no regrets: "Le talent est un titre de responsabilite" ("Talent confers responsibility"). Fifty years later, one might add, access confers responsibility as well. Georges Ruggiu learned that in Rwanda, where his access to the airwaves of Radio Television Libre des Milles Collines (RTLM) led to his being found responsible for inciting genocide and crimes against humanity in proceedings of the International Criminal Tribunal for Rwanda (ICTR).

As Rwanda and other countries struggled to respond to the genocide, Duke law professor Madeline Morris served as an adviser on justice to the president of Rwanda; in the late 1990s she helped draft legislation for handling the thousands of accused thronging Rwandan jails. (That legislation has fallen by the wayside, as the number of defendants has risen to four times the number the legislation was designed to help process.) This May, in a plea agreement, Ruggiu pleaded guilty to inciting genocide and contributing to crimes against humanity with his radio broadcasts and was sentenced to twelve years in prison. The Rwandan government has criticized the international tribunal's sentence in the plea bargain as too lenient.

Plea bargaining was an "essential part" of the plan devised by Morris' committee several years ago. "There was some real goodwill involved on the parts of some power holders in Rwanda about implementing that plan," she says. "Others were against it from the outset: It wasn't severe enough; everybody should be given the death penalty no matter how long it takes; if it takes a hundred years to prosecute these cases, well, they'll just have to die in prison; and, anyway, why would we even think about letting any of these people out of prison when these are mostly males of fighting age and we're on the brink of a war?"

Now, she says, those hardliners have consolidated their control over the Rwandan government, making the official reaction to Ruggiu's relatively light sentence less than surprising. But when it handed down that sentence, the ICTR took note of Ruggiu's remorse. As reported by the Hirondelle news agency, Ruggiu admitted that his radio station RTLM was "a real oracle for a big part of the population," and that RTLM collaborated with the extremist government to mobilize Hutus against Tutsis and even against moderates of their own. In making that admission, Ruggiu took a measure of responsibility for his words and for their consequences.

In the United States, words have historically been so protected by the First Amendment that a rhetorical yardstick has been needed to measure the consequences. The standby for determining where free speech ends and endangerment begins is the example of someone shouting "Fire!" in a crowded theater. But, as James Rolleston, a professor and chair of the department of Germanic languages and literature, says, that example has become "such an old-fashioned situation. What is crowded now is the Web."

Elements of both the Brasillach and Ruggiu cases crop up in discussions of the newest form of "journalism"--Internet-based publications. Sites like "The Nuremberg Files" present particular problems for a nation that is fiercely protective of its core value of free speech. On the one hand, speech and press restrictions are often viewed as censorship. However, these particular websites celebrate or advocate violence against doctors, nurses, and clinic workers, and even against law-enforcement officials and judges who are perceived to be pro-choice. They list names and addresses, publish photographs and sketches of their targets, and even note names of spouses and children.

"It's a very difficult balancing act, balancing the First Amendment guarantee of freedom of speech with life, liberty, and the pursuit of happiness," says Susan Tifft '73, Eugene W. Patterson professor of the practice at the Sanford Institute of Public Policy's DeWitt Wallace Center. "In the case of the 'Nuremberg Files' website, it seems pretty clear to the casual observer that the reason the doctors' names and addresses and descriptions are up there is in the implicit hope that someone is going to do them harm, bump them off. If you put someone's license-plate number up there, I can't imagine what else to think."

"The government has, it seems to me, a responsibility to protect people's lives in that instance," she says. "On the other hand, I'm against censorship in all its forms. You really don't want to go down the road that opens up the possibility of censoring--when you censor speech that you hate, you open the door to censoring speech that you agree with. But that's what courts are for, to make these very difficult, Solomonic decisions about where my rights begin and end and your rights begin and end."

The question of rights was tested in a federal case heard in Oregon last year, when Planned Parenthood sued the creators of the "Nuremberg Files" website after the murder of abortion provider Barnett Slepian, saying the website was contributing to a climate that encouraged such violence. Here James Rolleston sees a parallel to The Collaborator. "Perhaps that's the closest thing to talking about Brasillach," he says. "The question is naming names, isn't it? Because Brasillach certainly named names, and these people named names. That crosses the boundaries--that's not expressing an opinion anymore."

"Denunciation does not consist merely in saying, 'He is a Jew'; it consists in saying, 'He is a Jew' in the knowledge that such a statement will result in a punishment, whether it be stigmatization or isolation or expulsion," Kaplan writes in examining Brasillach's wartime writings. "Denunciation, in these circumstances, is not opinion; it is language that goes beyond opinion and ideology, to action."

But is such action enough to warrant suppression of speech? Law professor and First Amendment specialist William Van Alstyne gives both sides of the matter careful thought, examining what he calls the "variables" of free-speech cases. "The theory of the Supreme Court has been that, in an open democracy, a serious margin of error is inevitable in the political form, and that you do not want to make people unreasonably timid in their willingness to address public issues," he says, likening the First Amendment to "a series of concentric circles, where speech pertinent to the political process has a status-quo legality, at the core."

"The more you move away from the centrality of political figures and political processes, valid issues, who's running for office, how people are disporting themselves in public office, the suitability for others as candidates, or what issues ought to be on the ballot and how the people ought to think about those issues, the more you move away from the core of the First Amendment to the periphery," he says.

When Judge Learned Hand was on the bench, he presented a formulation for determining First Amendment protections, which Van Alstyne calls "probably the best summary of all First Amendment law. Hand said the question in every case is whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger."

"'The gravity of the evil'--what is the character of the harm?" says Van Alstyne. "You might lose a job or be kicked out of office or forfeit a few friends. Or you might lose your life, or one might lose their life, or thousands might lose their lives. Start with that. It's going to be a tradeoff."

He continues his dissection of Hand's formulation, defining the next phrase, "discounted by its improbability," as "diminished" by the chance of its happening. For instance, the chance was great that Hutus, who were already on a rampage, would hear Georges Ruggiu's exhortations to "hack your enemies to pieces" and then go on to commit further genocide as a result. Both "the gravity of the evil" and the probability of that evil occurring as the result of Ruggiu's speech were tremendous. In comparison, while the murder of doctors is also unconscionable, the gravity of several deaths and the probability that a visitor to the anti-choice website will become a sniper is relatively less than in the genocide example.

Less, however, does not mean non-existent. "When we come back to things like 'The Nuremberg Files,' though, you can see how tricky it is," he says. For some, the matter of abortion is "a transcendent political issueノ. That you would use therefore exaggeration and invective is to be expected in the caricature of pro-choice or abortion-minded people, just as you do with political candidates. A lot of that is frankly to be expected, and would be seriously protected."

As it worsens, can that invective be likened to the denunciations from Brasillach, or the incitement of Ruggiu's radio broadcasts? Van Alstyne says a case can be made. "The more you move from the discussion of those issues and focus on persons, with an awareness that you are then putting them at dire physical risk, the more the balance of factors begins to shift. And by striking out names with X's and posting information, and so on, it is plausible to understand why you would risk a greater likelihood of liability."

Still, even when a threat has been identified as such, the First Amendment does seem to continue to offer some protection. Van Alstyne says that criminal penalties are rare, with suppression of information before the fact rarer still. In most cases, civil liability is assessed instead. For instance, when the Oregon court found in favor of Planned Parenthood, the "Nuremberg Files" defendants were hit with heavy monetary damages.

In this society, it seems likely that such questions of commerce will play a regulatory role. Two days after the judgment was handed down in the "Nuremberg Files" case, the Internet service provider for the site terminated its contract with the creators. A subsequent contract with a different provider was also canceled after public pressure was brought to bear.

"Many of these servers now are jittery, and very unconfident. In fact, they're jittery, too, because of libel laws," he says, widening the context beyond the Oregon case. "It's a nice question, you see, as to whether or not an Internet service provider will have to answer, even as a newspaper has to answer to libel. We've all heard about AOL, where chatter goes on in digital streams. Billions of defamations per minute. If AOL does not know, if it just lets the stuff go through, generally speaking, they're treated the same way as Western Union. They are a carrier of other people's messages; they are not liable for the content of the message they carry."

As more and more questions are raised about content, however, the closer Internet service providers come to fulfilling an editorial role, which brings them closer to what Van Alstyne calls "skating on the thin edge of libel law. And generally speaking, if they continue to carry material after they receive knowledge of it, and it's of a criminal nature, then they are skating on the thin edge of even criminal law."

This certainly doesn't alleviate censorship fears. "I could imagine certain providers, as we call them, who are always going to be capitalists, taking offense at a website devoted to bringing down capitalism," says James Rolleston. " 'Let us rally, let us rise, let us target the capitalists'--any kind of language that suggests aggression might become unacceptable to a Web provider."

Does this mean that Interscope Records will get so nervous about the violent, misogynistic, and homophobic lyrics of rapper Eminem that they'll pull his new mega-selling album from store shelves? Not likely. But consumers can insist on responsibility, as the Gay and Lesbian Alliance Against Defamation is doing with a letter-writing campaign to the record company that both acknowledges Eminem's "freedom of speech to rap whatever he wants" and calls on Interscope to "raise its standards for what products it produces and what artists it promotes."

Finally, there is the question of context. Our culture differs from occupied France or strife-torn Rwanda. "In this country, we're not in a war situation," says Alice Kaplan. "Climate is a very powerful factor." Our climate presents the opportunity for education and information in large doses, which, says Susan Tifft, "puts more responsibility on the reader and viewer to make some very savvy decisions about whether or not to believe what they're reading. And those decisions are being made."

"The students I teach are much more sophisticated about these kinds of things than you might imagine," Tifft says. "They do think about who's providing the news--they tend to believe the conventional sources of news more than some guy who just put up a website."

Even hate speech itself offers an opportunity. Rolleston says he can recall that for some time after World War II, "there were certain Nazi films that were absolutely forbidden," including Leni Riefenstahl's propaganda classic Triumph of the Will. "That was one of the ones that was verboten for quite a while. And then it came off the list, of course, because it is actually an artist's film, and we're very lucky to have it. Otherwise, it would be very hard to understand how the Nazis got away with everything, because they seem very unattractive in retrospect. This film makes them attractive, and we learn from it."

"Language is at stake in the Brasillach trial, the capacity of language to do real evil," Kaplan writes in her introduction to The Collaborator. It can indeed do evil. But it has other capacities as well. It educates us to recognize that evil through its very existence, by reading or hearing or seeing it and recoiling from it. It teaches us to fight evil with other words. And it cautions us to choose our own words wisely.

Kaplan concludes the episode of Brasillach's trial with language that is meaningful even today: "Writers knew that words counted in a court of law. This was both an intimidating and an empowering knowledge--they mattered."

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