The American Exception

Today the New York Times continues its American Exception series of articles on ways that the American justice system is unique in the world. And with excellent timing (considering Tuesday's heated conversation on the issue here on JMG), today they discuss freedom of speech in an article titled Freedom To Offend.

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. The British Columbia Human Rights Tribunal will soon rule on whether the cover story of the October 23, 2006, issue of Maclean’s magazine violated a provincial hate speech law.

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.”

Read the entire article, it's excellent. Unlike some of the "prominent legal scholars" quoted in the article, I don't think we should emulate Canada or Europe.