June 12, 2008
American Exception
Unlike Others, U.S. Defends Freedom to Offend in Speech
By ADAM LIPTAK
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 Yorkdismissed 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 censorship, 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 support 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 relationship 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 importantly, 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 portraying 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 important 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.”