Wait, We’re Still Arguing About Free Speech?
By Jesse Singal - Jun 12th, 2008 at 7:00 pm
Everyone should check out this article from yesterday’s New York Times on the difference between the United States’ free-speech laws and those of some of our closest allies. Reading it helped strengthen my view that the U.S. take on free speech is far superior to other, evolving standards in Canada and Europe.
The focus of the article is a piece by Mark Steyn that ran in Maclean’s, a big weekly newsmagazine in Canada, two years ago. In it, Steyn argued, as so many other brilliantly original conservative pundits have, that the rise of Islam threatens the West.
This touched off some legal trouble for Maclean’s:
Two members of the Canadian Islamic Congress say the magazine… 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.
This, Liptak points out, could never have happened in the United States. Our First Amendment protects offensive, stupid speech like Steyn’s. In fact, the courts have recognized just one case in which the First Amendment doesn’t apply to hate speech: when that speech is likely to imminently incite violence. Liptak explains:
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.
The United States is well on its way to being the only developed country with such a liberal policy:
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.
This is bad news. There’s simply no way to ban hate speech in a manner that’s fair or at all logically coherent, and, whatever minor benefits are derived by shielding people from offensive speech, the negatives far outweigh the positives. For example, Steyn, truly an intellectual lightweight with little to offer who doesn’t deserve a shred of extra attention, can now paint himself—and not entirely without merit–as a martyr who was forced to appear before a state-run tribunal because of something he wrote.
But the bigger problem here is that some rather intangible and/or abstract concepts—dignity and hurt feelings—are being codified into law. As soon as you accept the premise that people have a legal right to not have their feelings hurt or their dignity affronted, you open up a Pandora’s box full of intractable questions. What, exactly, constitutes dignity? Can an empirically supported argument also be hate speech?
It might appear at first glance that it’s easy to separate “real” hate-speech from other, non-hate speech that could get swept up in these sorts of laws, but it isn’t. Liptak reports, for example, that “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.”
What if I agree with Bardot? What if I think the Jewish ceremony of circumcision is horrific, as many do, or that the most barbaric parts of Deuteronomy are, well, barbaric? There’s no coherent, consistent hate-speech law that would effectively prevent Ku Klux Klan rallies but allow Bardot or me to express our opinions without fear of legal reprisal. So we either throw away coherency and consistency or take a “burn it all” approach, leading to a stark set of choices: Ban anything that anyone finds offensive (Why should midgets deserve less protection from offense than Muslims? Or Christians less than Jews?); only ban hate speech against selected minority groups (It’s okay to criticize Christianity, but not Islam); or set the most lenient rules possible when it comes to speech.
I’m glad the Founders picked the last option—and that the courts have repeatedly strengthened this principle—because it’s far and away the best one. I am in no ways a stereotypical flag-waving patriot, but in this one area I think the United States is simply right and the countries mentioned in this article are simply wrong. It’s sad that in 2008 there’s still debate over whether people have the right to publicly share their dumb, offensive opinions.
While I agree that we should continue to protect the right to free speech, I think a genuine debate about the responsibilities which accompany that right is healthy. Freedom of speech is not guaranteed under every circumstance even in the U.S. Some speech that threatens the security of a group of people or insights violence against them should be banned. Noting the current phobia to anything identified as Muslim in the West nowadays claiming that the religion of Islam is a threat to our way of life is an unfair provocation against an entire group in Canada. Will the news magazine create a violent uproar against Muslims? Probably not. However, the article exists in a social context where anti-Muslim propaganda is not only hurtful but feeds the fears and stereotypes of misinformed people.
Its a thin line and while I don’t think the man should be put to death, I understand why other developed democracies are taking hate speech a lot more serious than we are.
June 12th, 2008 at 7:28 pmBefore I read the NYT article and your post, I thought I was going to disagree with you. Canada prides itself on its racial and cultural integration, equality, and acceptance, and I’ve never seen that lack of tension in any other country. But I’m not willing to exchange that for censorship, and indeed Canada (or other countries such as the UK) have gone to sometimes troubling forbidding in banning not just hate speech, but “obscene” content and similar things that are now well-protected under the First Amendment here.
Not to trot out an old trope, but I’m all for disagreeing with what you say and defending to the death your right to say it, and all that jazz.
June 12th, 2008 at 8:22 pmAustin, I’m going to have to strongly disagree. You missed the entire point of the Times article and Jesse’s post. The First Amendment isn’t a quid pro quo, there simply are no responsibilities that accompany free speech. You don’t have to do anything to earn it, that’s why it’s a right.
Censorship is a measure of last resort. The burden of proof is on you to show there’s no better way than legal prohibition to combat “hurtful” speech.
June 12th, 2008 at 8:38 pmMany Muslims in Europe see a double standard for free expression: while many European countries prohibit Mein Kampf and criminalize denial of the Holocaust, there are no such bans for offensive cartoons. At least Canada’s syrup-covered middle finger in the face of liberty is even-handed. Since Canadians like their “human rights” tribunals, have they ever considered that the freedom of expression a human right? Or is it only a human right when the expression falls in line with the current political mores?
Nonetheless the freedom of speech has its benefits: it forces us to reexamine received orthodoxy, it forces us to carefully consider opposing ideas, and it eventually brings to light fraudulent nonsense for what it is.
Using the power of the government to coerce the thoughts of others is a tool of the intellectually weak and intellectually lazy. Such people, be they doctrinaire activists or White House officials, simply cannot or will not consider and argue for or against a position.
June 12th, 2008 at 11:15 pmThe problem with US free speech is only the ever present threat of litligation. With the cost of going to court to defend yourself many people are forced to hold their tongues as speaking out could bankrupt them whther their position is defendable or not.
Do any US states offer a public defender for civil suits brought over free speech claims? I have certainly never heard of any.
Free speech if you can afford it.
June 13th, 2008 at 4:10 amThe threat of litigation applies to libel and slander, and, as the article pointed out, to speech not covered under the imminence condition. If I go to you and call you a blanketyblank xyz (pick your insult and ethnic group/religion/gender) and you sue me, it will be thrown out of court. Period.
June 13th, 2008 at 7:43 am[...] to make a slippery slope argument about restrictions on speech becoming too broad. As Jesse Singal argues, once you enshrine certain vague categories of speech that can be restricted - [...]
June 13th, 2008 at 2:11 pm[...] to make a slippery slope argument about restrictions on speech becoming too broad. As Jesse Singal argues, once you enshrine certain vague categories of speech that can be restricted - “offensive” [...]
October 21st, 2008 at 12:08 pm