I am somewhat stunned by the latest discussion on "free speech."
All you have to do is not like (well, you really have to "hate it") what
someone says ... toleration of people saying things that the people in
power
"hate" is the essence of the first amendment.
http://www.nytimes.com/2008/06/12/us/12hate.html?_r=1&pagewanted=all&oref=slogin
American Exception
Unlike Others, U.S. Defends Freedom to Offend in Speech
By ADAM LIPTAK
Published: June 12, 2008
VANCOUVER, British Columbia — A couple of years ago, a Canadian magazine
published an article arguing that the rise of Islam threatened Western
values. The article’s tone was mocking and biting, but it said nothing
that
conservative magazines and blogs in the United States do not say every day
without fear of legal reprisal.
Things are different here. The magazine is on trial.
Two members of the Canadian Islamic Congress say the magazine, Maclean’s,
Canada’s leading newsweekly, violated a provincial hate speech law by
stirring up hatred against Muslims. They say the magazine should be
forbidden from saying similar things, forced to publish a rebuttal and
made
to compensate Muslims for injuring their “dignity, feelings and
self-respect.”
The British Columbia Human Rights Tribunal, which held five days of
hearings
on those questions here last week, will soon rule on whether Maclean’s
violated the law. As spectators lined up for the afternoon session last
week, an argument broke out.
“It’s hate speech!” yelled one man.
“It’s free speech!” yelled another.
In the United States, that debate has been settled. Under the First
Amendment, newspapers and magazines can say what they like about
minorities
and religions — even false, provocative or hateful things — without legal
consequence.
The Maclean’s article, “The Future Belongs to Islam,” was an excerpt from
a
book by Mark Steyn called “America Alone” (Regnery, 2006). The title was
fitting: The United States, in its treatment of hate speech, as in so many
other areas of the law, takes a distinctive legal path.
“In much of the developed world, one uses racial epithets at one’s legal
peril, one displays Nazi regalia and the other trappings of ethnic hatred
at
significant legal risk, and one urges discrimination against religious
minorities under threat of fine or imprisonment,” Frederick Schauer, a
professor at the John F. Kennedy School of Government at Harvard, wrote in
a
recent essay called “The Exceptional First Amendment.”
“But in the United States,” Professor Schauer continued, “all such speech
remains constitutionally protected.”
Canada, England, France, Germany, the Netherlands, South Africa, Australia
and India all have laws or have signed international conventions banning
hate speech. Israel and France forbid the sale of Nazi items like
swastikas
and flags. It is a crime to deny the Holocaust in Canada, Germany and
France.
Earlier this month, the actress Brigitte Bardot, an animal rights
activist,
was fined $23,000 in France for provoking racial hatred by criticizing a
Muslim ceremony involving the slaughter of sheep.
By contrast, American courts would not stop a planned march by the
American
Nazi Party in Skokie, Ill., in 1977, though a march would have been deeply
distressing to the many Holocaust survivors there.
Six years later, a state court judge in New York dismissed a libel case
brought by several Puerto Rican groups against a business executive who
had
called food stamps “basically a Puerto Rican program.” The First
Amendment,
Justice Eve M. Preminger wrote, does not allow even false statements about
racial or ethnic groups to be suppressed or punished just because they may
increase “the general level of prejudice.”
Some prominent legal scholars say the United States should reconsider its
position on hate speech.
“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a
legal philosopher, wrote in The New York Review of Books last month, “when
they say that a liberal democracy must take affirmative responsibility for
protecting the atmosphere of mutual respect against certain forms of
vicious
attack.”
Professor Waldron was reviewing “Freedom for the Thought That We Hate: A
Biography of the First Amendment” by Anthony Lewis, the former New York
Times columnist. Mr. Lewis has been critical of efforts to use the law to
limit hate speech.
But even Mr. Lewis, a liberal, wrote in his book that he was inclined to
relax some of the most stringent First Amendment protections “in an age
when
words have inspired acts of mass murder and terrorism.” In particular, he
called for a re-examination of the Supreme Court’s insistence that there
is
only one justification for making incitement a criminal offense: the
likelihood of imminent violence.
The imminence requirement sets a high hurdle. Mere advocacy of violence,
terrorism or the overthrow of the government is not enough; the words must
be meant to and be likely to produce violence or lawlessness right away. A
fiery speech urging an angry mob to immediately assault a black man in its
midst probably qualifies as incitement under the First Amendment. A
magazine
article — or any publication — intended to stir up racial hatred surely
does
not.
Mr. Lewis wrote that there was “genuinely dangerous” speech that did not
meet the imminence requirement.
“I think we should be able to punish speech that urges terrorist violence
to
an audience, some of whose members are ready to act on the urging,” Mr.
Lewis wrote. “That is imminence enough.”
Harvey A. Silverglate, a civil liberties lawyer in Cambridge, Mass.,
disagreed. “When times are tough,” he said, “there seems to be a tendency
to
say there is too much freedom.”
“Free speech matters because it works,” Mr. Silverglate continued.
Scrutiny
and debate are more effective ways of combating hate speech than
censor****p,
he said, and all the more so in the post-Sept. 11 era.
“The world didn’t suffer because too many people read ‘Mein Kampf,’ ” Mr.
Silverglate said. “Sending Hitler on a speaking tour of the United States
would have been quite a good idea.”
Mr. Silverglate seemed to be echoing the words of Justice Oliver Wendell
Holmes Jr., whose 1919 dissent in Abrams v. United States eventually
formed
the basis for modern First Amendment law.
“The best test of truth is the power of the thought to get itself accepted
in the competition of the market,” Justice Holmes wrote.
“I think that we should be eternally vigilant,” he added, “against
attempts
to check the expression of opinions that we loathe and believe to be
fraught
with death.”
The First Amendment is not, of course, absolute. The Supreme Court has
said
that the government may ban fighting words or threats. Punishments may be
enhanced for violent crimes prompted by racial hatred. And private
institutions, including universities and employers, are not subject to the
First Amendment, which restricts only government activities.
But merely saying hateful things about minorities, even with the intent to
cause their members distress and to generate contempt and loathing, is
protected by the First Amendment.
In 1969, for instance, the Supreme Court unanimously overturned the
conviction of a leader of a Ku Klux Klan group under an Ohio statute that
banned the advocacy of terrorism. The Klan leader, Clarence Brandenburg,
had
urged his followers at a rally to “send the Jews back to Israel,” to
“bury”
blacks, though he did not call them that, and to consider “revengeance”
against politicians and judges who were unsympathetic to whites.
Only Klan members and journalists were present. Because Mr. Brandenburg’s
words fell short of calling for immediate violence in a setting where such
violence was likely, the Supreme Court ruled that he could not be
prosecuted
for incitement.
In his opening statement in the Canadian magazine case, a lawyer
representing the Muslim plaintiffs aggrieved by the Maclean’s article
pleaded with a three-member panel of the tribunal to declare that the
article subjected his clients to “hatred and ridicule” and to force the
magazine to publish a response.
“You are the only thing between racist, hateful, contemptuous Islamophobic
and irresponsible journalism, and law-abiding Canadian citizens,” the
lawyer, Faisal Joseph, told the tribunal.
In response, the lawyer for Maclean’s, Roger D. McConchie, all but called
the proceeding a sham.
“Innocent intent is not a defense,” Mr. McConchie said in a bitter
criticism
of the British Columbia law on hate speech. “Nor is truth. Nor is fair
comment on true facts. Publication in the public interest and for the
public
benefit is not a defense. Opinion expressed in good faith is not a
defense.
Responsible journalism is not a defense.”
Jason Gratl, a lawyer for the British Columbia Civil Liberties Association
and the Canadian Association of Journalists, which have intervened in the
case in sup****t of the magazine, was measured in his criticism of the law.
“Canadians do not have a cast-iron stomach for offensive speech,” Mr.
Gratl
said in a telephone interview. “We don’t subscribe to a marketplace of
ideas. Americans as a whole are more tough-minded and more prepared for
verbal combat.”
Many foreign courts have respectfully considered the American approach —
and
then rejected it.
A 1990 decision from the Canadian Supreme Court, for instance, upheld the
criminal conviction of James Keegstra for “unlawfully promoting hatred
against an identifiable group by communicating anti-Semitic statements.”
Mr.
Keegstra, a teacher, had told his students that Jews were “money loving,”
“power hungry” and “treacherous.”
Writing for the majority, Chief Justice Brian Dickson said there was an
issue “crucial to the disposition of this appeal: the relation****p between
Canadian and American approaches to the constitutional protection of free
expression, most notably in the realm of hate propaganda.”
Chief Justice Dickson said “there is much to be learned from First
Amendment
jurisprudence.” But he concluded that “the international commitment to
eradicate hate propaganda and, most im****tantly, the special role given
equality and multiculturalism in the Canadian Constitution necessitate a
departure from the view, reasonably prevalent in America at present, that
the suppression of hate propaganda is incompatible with the guarantee of
free expression.”
The United States’ distinctive approach to free speech, legal scholars
say,
has many causes. It is partly rooted in an individualistic view of the
world. Fear of allowing the government to decide what speech is acceptable
plays a role. So does history.
“It would be really hard to criticize Israel, Austria, Germany and South
Africa, given their histories,” for laws banning hate speech, Professor
Schauer said in an interview.
In Canada, however, laws banning hate speech seem to stem from a desire to
promote societal harmony. While the Ontario Human Rights Commission
dismissed a complaint against Maclean’s, it still condemned the article.
“In Canada, the right to freedom of expression is not absolute, nor should
it be,” the commission’s statement said. “By ****traying Muslims as all
sharing the same negative characteristics, including being a threat to
‘the
West,’ this explicit expression of Islamophobia further perpetuates and
promotes prejudice toward Muslims and others.”
A separate federal complaint against Maclean’s is pending.
Mr. Steyn, the author of the article, said the Canadian proceedings had
illustrated some im****tant distinctions. “The problem with so-called hate
speech laws is that they’re not about facts,” he said in a telephone
interview. “They’re about feelings.”
“What we’re learning here is really the bedrock difference between the
United States and the countries that are in a broad sense its legal
cousins,” Mr. Steyn added. “Western governments are becoming increasingly
comfortable with the regulation of opinion. The First Amendment really
does
distinguish the U.S., not just from Canada but from the rest of the
Western
world.”
|
