I do check Blazing Cat Fur for updates occassionally, but today's New York Times has a great background piece for the uninitiated, "Unlike Others, U.S. Defends Freedom to Offend in Speech:"
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.Note something about this story: In the U.S., those arguing for resrictions on speech are on the left- folks who apparentlly have less confidence that their ideas will prevail in the marketplace of ideas.
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.”
Having said that, I do think that speech that constitutes express incitement to killing should not be constitutionally protected, and I've debated that question recently with regards to Texas Fred's constant advocacy of murdering undocumented Mexican migrants as they cross the border into the United States. Thus, one needs to be careful with the "imminence standard," basically looking for the shift from the mere expression of an idea to express advocacy and operational planning.
In any case, here's Steyn's piece:
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