France made headlines (and waves) last month after its burkini bans yielded photographic evidence of police officers forcing women to take off clothing on public beaches. Now, France’s highest administrative court (and other French judges) have begun invalidating these bans, instituted by 30 cities in France, that prohibit publicly wearing burkinis. Yet French citizens are still threatening to call the police on women wearing burkinis — swimwear, donned mostly by Muslim women, that covers everything but the face, hands, and feet.
In America, a ban on wearing religiously-affiliated clothing would be unlikely to succeed legislatively, and would certainly be invalidated judicially as both free speech and free exercise First Amendment violations. However, there are lessons we can learn from France’s struggles with the burkini ban as our First Amendment jurisprudence and free speech culture evolves. France’s reasons for implementing the burkini ban are echoed across the political spectrum: in calls to censor pro-Trump chalkings on university campuses and in approval of police officer’s denial of protection for football players who refuse to stand for the national anthem. And France’s staunch secularism conflates state refusal to ban religious clothing with state endorsement of religion, just as some scholars and critics of our current First Amendment doctrine believe that the failure to ban particular speech is tantamount to approving of such speech. In essence, France’s burkini ban debacle illustrates why attempts in this country to abridge speech some find offensive, un-American, or regressive are ultimately intolerant and misguided. The existence of the ban also shows the importance of distinguishing between state action and private action in determining when our liberties are restricted.
The justifications for the burkini ban, when abstracted, are not so alien here. First and foremost, French culture is committed to a strong ethos that it has trouble seeing around – the French are vocally, dogmatically secular. Religious clothing has been banned in French public schools as tantamount to a French endorsement of religion, and the burkini is thought to not “respect good customs and secularism.” Secondly, the burkini ban equates speech it would rather not see with unsafe speech, regardless of the connection between the speech and actual violence. Recent terrorist attacks, such as the one in Nice, have scared French citizens, and French officials claim that the public does not feel safe when it sees evidence of religious fundamentalism. Finally, the French are proudly progressive on women’s issues. The burkini, according to Prime Minister Manuel Valls, is a symbol of the “enslavement of women,” likely due to the fact that women are forced or strongly encouraged to cover most of their bodies in some predominantly Muslim countries.
The irony of promoting a safe, tolerant atmosphere by prohibiting the peaceful, voluntary demonstration of a religion is not lost on Americans. Yet, in other contexts, many in this country use the same justifications for wanting speech either banned by those in power or censored using civil liability. Prime Minister Valls believes the burkini is the “affirmation of political Islam in the public space.” Those opposed to Presidential candidate Donald Trump’s hateful messages believe pro-Trump chalkings on university campuses create an atmosphere of fear and hate, and that universities should punish students exercising their right to political speech. Of course, political Islam is not akin to many of Trump’s most extreme views about immigration. But the same logic – that a government’s or university’s approval of “offensive” or frightening speech is the same as a university’s endorsement of the speech – applies. When those in power permit speech, it allows space for others to exhibit views we may dislike, but equating a lack of censorship/prohibition with the endorsement of speech would give the government the power to force one, unified view of culture, justice, and “America.”
As appealing as it would be, we do not all share the same views about right and wrong, about how women should dress, about the nature and cause of police’s excessive use of force, or about the ways we can keep America safe from foreign enemies. Arguments to regulate offensive or seemingly hateful speech often assume that we need to show a unified sense of justice and fairness so that citizens can feel safe and comfortable. This is impossible when speech is at issue. Bright lines separating (1) private speech from government endorsement, and (2) conduct from speech, even harassing or offensive speech, unless that speech constitutes actual threats of violence, is necessary to preserve pluralism. Governments can target conduct, such as actual terrorist activity or overt discrimination, but they need to allow speech attenuated (and in the case of the burkini, highly attenuated) from action to flourish.