Interesting article in the International Herald about a free speech vs. hate speech case in Canada:
Under Canadian law, there is a serious argument that the article contained hate speech and that its publisher, Maclean’s magazine, the nation’s leading newsweekly, 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 in Vancouver last week, will soon rule on whether Maclean’s violated a provincial hate speech law by stirring up animosity toward Muslims.
The article points out that in this country, the debate has been settled.
Under the First Amendment, newspapers and magazines can say what they like about minority groups 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.” The title was fitting: The United States, in its treatment of hate speech, as in so many 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,” Schauer continued, “all such speech remains constitutionally protected.”
Canada, Britain, 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.
Last week, the actress Brigitte Bardot, an animal rights activist, was fined €15,000, or $23,000, in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.
By contrast, U.S. courts would not stop the American Nazi Party from marching in Skokie, Illinois, in 1977, though the march was 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 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.”
The worrisome thing about limiting speech for its hateful nature is figuring out who gets decide whether speech is a “vicious attack.” That’s why I feel more comfortable simply allowing all speech — then we don’t have to worry about where to draw the line.